**UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION III**  **1650 Arch Street Philadelphia, Pennsylvania 19103**  **DATE:** September 16, 2013 **SUBJECT:** Technical Support Document for the Delaware State Implementation Plan for the

In frastructure Requi rements for the 20 10 Sulfur Dioxide National Ambient Air Quality Standards /s/ **FROM:** Rose Quinto, Environmental Engineer

Office of Air Program Planning **TO:** File /s/ **THRU:** Cristina Fernandez , Associate Director

Office of Air Program Planning
**A. INTRODUCTION**  The Environmental Protection Agency (EPA) is taking action on a submittal made by the State of Delaware to meet the Clean Air Act (CAA) section 110(a)(2) infrastructure requirements f or the 20 10 sulfur dioxide (SO 2 ) national ambient air qua lity standards (NAAQS ).
**B . BACKGROUND**  On June 22, 2010 (75 FR 35520) , EPA promulgated a revised NAAQS for the 1

- hour primary SO 2 at a level of 75 parts per billion (ppb), based on a 3
- ye ar average of the annual 99 th percentile of 1

- hour daily

maximum c oncentrations. S ection 110(a) of the CAA requires states to submit state implementation plans (SIPs) that provide for the implementation, maintenance, and enforcement of new or revised NAAQS within three years following the promulgation of such NAAQS. Se ction 110(a) of the CAA imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS. For the 20 10 SO 2 NAAQS, states ty pically have met many

of the basic program elements required in section 110(a)(2) of the CAA through earlier SI P submissions in connection with previous SO 2 standards. Section 110(a)(2) of the CAA lists specific elements that states must meet or continue to meet in these SIP submissions. The requirements include SIP infrastructure elements such as require ments for modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS.2

**C. EPA REQUIREMENTS** As discussed above, for the 2010 SO 2 NAAQS, s tates must provide SI P submissions , or provide certificat ion that the existing SI P contains provisions addressing relevant infrastructure SI P elements from s ection s 110(a)(2) (A) through (M) of the CAA

.
**D . STATE**  **’S SUBMITTAL**  On May 2 9 , 2013 , Delaware provided a submittal to satisfy the requirements of sectio n 110(a) (2) of the CAA for the 20 10 SO 2 NAAQS
. Th is submittal addressed the following infrastructure elements that EPA is proposing to approv e : S ection 110(a)(2)(A), (B), (C), (D) (i)(I I), (D)(ii) , (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA

. T he submittal also addressed section 110(a)(2)(D)(i)(I ) but EPA will take separate action on that part of the Delaware submittal. This submittal d id n ot include element (I ) which pertain s to the nonattainment requirements of part D, Title Iof the CAA, sin ce this element is not required to be submitted by the 3

- ye ar submission deadlin e of CAA se ction 110(a)( 1 ) , and will be addressed in a separate process

. **E. EVALUATION OF STATE SUBMITTAL 1.**  **Section 110(a)(2)(A)** EPA has determined that Delaware has es tablished laws and regulations applicable to the 2010 SO 2 NAAQS that include enforceable emissions limitations and other control measures, means or techniques, as well as schedules and timetables for compliance to meet the applicable requirements of the CAA. The following enforceable emission limitations and schedules are contained in Delaware’s approved SIP: 7 DE Admin. Code s 11 01 (Definitions and Administrative Principles) , 11 08 (SO 2 Emissions from Fuel Burning Equipment) , 11 09 (Emissions of Sulfur Comp ounds from Industrial Operations) , 11 10 (Control of SO 2 Emissions

Kent and Sussex Counties) , 11 27 (Stack Heights) , 1144 (Control of Stationary Generator Emissions) , 1145 (Excessive I dling of Heavy Duty Vehicles) , and 11 4 6 (Electr ic Generating Unit Multi

- P ollutant Regulation)

. These regulations are identified as part of the Delaware SIP at 40 CFR 52.420(c). At present, statutory

authority is set out in Title 7 “Conservation” of the Delaware Code, Chapter 60

—Delaware’s comprehensive water and air resourc es conservation law. L egislative authority giving the Secretary

of the Delaware Department of Natural Resources and Environmental Control ( DNREC ) the authority to promulgate regulations is codified at 7 Del

. C
. , Chapter 60. This authority

is applicable t o the 20 10 SO 2 NAAQS. Inthis rulemaking action, EPA is not proposing to approve or disapprove any existing Delaware provisions with regard to excess emissions during s tartup, s hutdown, and m alfunction (SSM) of3

operations at a facility . EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance (August 11, 1999 , Steven Herman and Robert Perciasepe Guidance Memorandum, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, S tartup, and Shutdown”), and EPA is address ing such state regulations in a separate rulemaking action

. See 78 FR 12460 , Feb r uary 22, 2013. Inthe meantime, EPA encourages any s tate having a deficient SSM provision to take steps to correct it as soon as po ssible

. Also in this action, EPA is not proposing to approve or disapprove any existing Delaware rules with regard to director’s discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (see 52 FR 45109, November 1987), and EPA is taking separate rulemaking action to address such state regulations. See 78 FR 12460. In that proposed rulemaking, EPA identified specific Delaware regulations in which state officials are provided unbounded discretion to set alternative emission limits during periods of start

- up and shutdown of equipment through a permitting process that does not entail subsequent approval of the alternative emission limits through a SIP revision. EPA has proposed to find that this process constitutes an impermissible director’s discretion provision with the potential to allow impermissible discretionary exemptions from SI P emission limits. See 78 FR 12 495
- 12496. Inthe meantime, EPA encourages any s t ate having director’s discretion or variance provision s which are contrary to the CAA and EPA guidance to take steps to correct the deficiency

as soon as possible. Based upon EPA’s review of the submittal, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)( A ).
**2. Section 110(a)(2)(B)**  7 DE Admin

. Code 110 3

– “ Ambient Air Quality Standards ” and 7 DE Admin. Code 1117

– “Source Monitoring, Record Keeping and Reporting” provide for the establishment and operation of procedures necessary to monitor, compile, and analy ze data related to ambient air quality

. Th ese regulation s are included in Delaware’s approved SIP listed in 40 CFR 52.420(c)

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

to monitor, compile, and analy ze data on ambient air quality , and upon request, makes such data available to the Administrator. Delaware maintains and operates a multi

- station network of ambient monitors throughout th e State to measure ambient air quality levels within Delaware for comparison to each NAAQS as required by

40 CFR part 58. Delaware measures and reports SO 2 concentrations from monitoring sites located in Wilmington near MLK Boulevard, Delaware City , Belle fonte , Summit Bridge, and Lewis.4

All data is measured using EPA approved methods as either Reference or Equivalent monitors. All monitors are subjected to the quality assurance requirements of 40 CFR p art 58, Appendix A, and all samplers are located at s ites that have met the minimum siting requirements of 40 CFR p art 58, Appendix E. The data is submitted to EPA’s Air Quality Sy stem (AQS) in a timely manner in accordance with the schedule prescribed by EPA in 40 CFR p art 58. Inorder to keep EPA informe d of changes to the sampling network, DNREC provides EPA Region I II with prior notification of any planned changes to the network. As needed, details of these changes and anticipated approvals of the changes are communicated to EPA. On an annual basis, D elaware sends EPA a monitoring network plan as required by 40 CFR p art 58, section 10 (Annual Monitoring Network Plan and Periodic Network Assessment)

. EPA approved Delaware’s 2012 Annual Air Quality Monitoring Network Design Plan on February 21, 2013. T his plan contains all required information including site and monitor description, analysis methods, operating schedule, monitoring objectives and scale of representativeness, as well as information on any

planned changes. DNREC submits data to the AQS sy stem, in a timely manner, pursuant to the schedule prescribed by EPA in 40 CFR p art 58 . Other requirements of the 2010 SO 2 NAAQS include operational SO 2 air quality monitoring network that was in place on January

1, 2013. Delaware has the appropriate number and location of SO 2 monitors in New Castle and Sussex Counties. All monitors we re operational as of January 1, 2013. Based upon EPA’s review of the submittal, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2 )( B ).
**3. Se**  **ction 110(a)(2)(C)** Delaware has established and currently operates a program to provide for the e nforcement of the enforceable emission limitations and other control measures (including the measures identified for s ection 110(a)(2)(A) abov e) , means, or techniques, as well as schedules and time tables for compliance, as may

be necessary

or appropriate, to meet the applicable requirements of the CAA and to regulate modification and construction of any stationary

source within areas covered by its SI P as necessary

to assure the NAAQS are achieved. Aspects of Delaware’s program for enforcement are found in those SI P
- approved provisions of 7 DE Admin. Codes 1102 and 11 25
. At present, Delaware , as part of its Division of Air Quality function , exercises its programmatic authority to utilize the enforcement powers set out in 7 Del. C

. section 6005 entitled, “Enforcement; civil and administrative penalties; expenses,” 7 Del. C. , section 6013 entitled “Criminal penalties,” and 7 Del

. C. section 601 8 entitled “Cease and desist order.” Delaware implements its Construction and Operation Permit Program requirements under 7 DE Admin. Code s 1102 and 1125. These existing permitting programs which are part of the F ederally

- approved SI P ensure that the c onstruction and modification of both major and minor stationary sources do not cause or contribute to a violation of the SO 2 NAAQS.5

SI P approved 7 DE Admin. Code 1102 provides for the evaluation and necessary regulation of any stationary

source that emit s equal to or greater than 0.2 pound s of any air contaminant, including SO 2 , in any

one day

. SI P approved 7 DE Admin. Code 1125 governs preconstruction review and permitting of any new or modified major stationary source of air pollutants as required in Part C of Title Iof the CAA. Based upon EPA’s review of the submittal, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)( C ).

**4. Section 110(a)(2)(D)**  **Section 110(a)(2)(D)(i)(I)** Inaccordance with the decis ion of the U.S. Court of Appeals for the D istrict of C olumbia (D.C. Circuit Court) , EPA at this time is not treating the 110(a)(2)(D)(i)(I) SI P submission from Delaware as a required SIP submission. See EME Homer City Generation, LP v. EPA , 696 F.3d 7 (D. C. Cir. 2012), ce r . granted, 2013 U.S. App. L EXI S 48101 (2013). On June 24, 2013, the Supreme Court granted the petitions of the United States and others and agreed to review this D.C. Circuit Court decision. However, at this time the D.C. Circuit Court decision remains in place and unless it is reversed or otherwise modified by the Supreme Court, states are not required to submit 110(a)(2)(D)(i)(I ) SI P revisions until EPA has quantified their obligations under that section. Regardless of whether a parti cular SI P submission is considered to be “required,” section 110(k)(2) of the CAA requires EPA to act on the submission. Delaware’s May 2 9 , 2013 infrastructure SIP submission for the 20 10 SO 2 NAAQS included information related to section 110(a)(2)(D)(i)(I )

. EPA will address this portion of Delaware’s submittal in a separate action. **Section 110(a)(2)(D)(i)(II)** For al l areas of Delaware, a SI P
- approved PSD program ( Section 3.0 of 7 DE Admin. Code 1125) is in place. See 40 CFR 52.420(c). See additional discussion under 110(a)(2)(C). Based upon EPA’s review of the submittal, EPA is proposing to determine that Delaware has met its obligations pursuant to 110(a)(2)(D)(i)(I I) for the permit program to meet Part C of Title I of the CAA
. EPA notes that the Delaware SI P also includes Delaware ’s permit program to meet requirements in Part D of Title I of the CAA ( applicable in nonattainment areas) for construction or modification of major stationary sources . See 7 DE Admin. Code 1125, Section 2.0.6

Prong 4 of section 110(a)(2)(D)(i) (II) requires that SI Ps include provisions prohibiting any source or other ty

pe of emissions activity

in one state from interfering with measures to protect visibility required to be included in another state’s SIP
. Delaware’s re gional haze SIP was approved on July 19, 2011 (76 FR 42557) and prohibits emission sources in Delaware from emitting air pollutants which would interfere with measures that protect visibility in other states

. Based upon EPA’s review of the submittal, EP A is proposing to determine that the State has met its obligations pursuant to 110(a)(2)( D ) (i)(I I )

. **Section 110(a)(2)(D)(ii)** The Delaware SIP has adequate provisions to insure compliance with applicable requirements of sections 126 and 115 of the CAA

. Delaware has a SIP approved PSD program (7 DE Admin Code 1125

– October 2, 2012 , 77 FR 60053)

. In addition, there are no sources within Delaware that are subject to a finding under section 126 of the CAA with respect to the SO 2 NAAQS. Also, there are no findings under section 115 of the CAA against Delaware with respect to the SO 2 NAAQS. Based upon EPA’s review of the submittal, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)( D ) (ii)

. **5 .**  **Section 110(a)(2 )(E)**  For section 110(a)(2)(E)(i), Delaware has adequate authority under state law pursuant to 7 Del. C. Chapter 60 to carry out its SI P obligations with respect to the 20 10 SO 2 NAAQS. DNREC will continue to have, through the State of Delaware General Fund and through the Title V fee program, funding to carry out its SI P obligations. Further more , D elaware’s funding sources are sufficient to provide adequate personnel for those purposes. At present, Delaware also states that it fulfills this obligation by virtue of having adequate personnel and funding through the CAA section 105 grant process ( F ederal grant funds), the State of Delaware general fund (state tax revenues), and appropriated special funds collected by the State of Delaware from application fees, permit fees, renewal fees, and civil or administrative penalties or fines under 7 Del. C. Chapter 60

. DNREC’s Division of Air Quality is responsible for developing, implementing and enforcing the SIP. Delaware complies with the requirements of s ection 110(a)(2)(E)(ii) through compliance with the applicable requirements of 29 Del C., Chapter 58, “L aws Regulating the Conduct of Officers and Employees of the State , ” which EPA approved as a SI P revision on April 17, 2013 (78 FR 22785).7

The requireme nts of section 110(a)(2)(E)(iii) are not applicable to Delaware because Delaware does not rely

on localities for specific SIP implementation. Based upon EPA’s review of the submittal, EPA is proposing to determine that Delaware has met its obligations pursuant to 110(a)(2)( E ).
**6 .**  **Section 110(a)(2)(F)** Specific monitoring and emissions reporting requirements are found throughout the State of Delaware ’s r egulations g overning the c ontrol of a ir p ollution, includ ing 7 DE Admin. Codes 11 03 and 11 17
. Thes e regulations are included in Delaware’s approved SIP and are listed in 40 CFR 52.420(c). Delaware’s SI P requires that owners or operators of stationary sources monitor and submit periodic reports on the nature and amounts of SO 2 emissions and emissions r elated

- dat a from sources. Th e information submitted to DNREC is available to the public at reasonable times for public inspection pursuant to Delaware law. Delaware ’s SI P submittal stated that it will continue to require reporting of emissions. Delaware ’s regulatory authorities include the ability for Delaware to require the installation, maintenance and replacement of equipment, where appropriate. Except as specifically

exempted by

the Delaware Freedom of Information Act, 29 Del

. C
. Chapter 100, Delaware makes all records, reports or information obtained by DNREC or referred to at public hearings available to the public pursuant to the provisions of the Delaware Freedom of Information Act, 29 Del

. C. Chapter 100. Other aspects of Delaware’s program f or requiring installation and maintenance of monitoring equipment, and periodic emissions reporting, are found in the source monitoring, source testing and test methods, and recordkeeping and reporting provisions of 7 DE Admin. Codes 1 108 , 11 09 , 11 10 , 112 7 , 11 44 , 11 45 , 114 6 and others in the approved Delaware SIP, which is identified at 40 CFR 52.420(c). Based upon EPA’s review of the submittal, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)( F)

. **7 .**  **Section 110(a)(2)(G)**  Delaware has authority

comparable to that in section 303 of the CAA and adequate contingency plans to implement such authority

.8

At present, 7 Del

. C. section 6003(a)(1) requires a permit from the Secretary prior to discharging any air co ntaminant. 7 Del. C. section 6002(2) defines air contaminant essentially as any substance other than uncombined water. 7 Del. C. section 6005 allows the Secretary to seek a preliminary

or permanent injunction or temporary restraining order for discharge of an air contaminant without a permit authorization , and to issue a cease and desist order for violations (7 Del. C. section 6018). Therefore, if any discharge of an air contaminant, including S O 2 , would cause imminent and substantial endangerment to th e health, safety and welfare of the people of the State of Delaware or the environment , the Secretary may seek an injunction or temporary restraining order to halt the violation. Delaware’s SI P contains an emergency episode plan found in 7 DE Admin. Code 1115, Air Pollution Alert and Emergency Plan , that is currently

approved in the SIP and identified at 40 CFR 52.420(c). Based upon EPA’s review of the submittal, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)( G)

. **8 .**  **Section 110(a)(2)(H)** Through its SI P submission , Delaware has demonstrated that it has adequate authority under the Delaware Code, Chapter 60, Title 7 “Conservation” to revise the SIP. Th e submissio n also provide s EPA with adequate assurances that Delaware will review and revise its SIP from time to time as may

be necessary

to take account of revisions of such primary or secondary

NAAQS or the availability

of improved or more expeditious methods of attaining such standard s , whenever the Admini strator finds, on the basis of information available to the Administrator, that the plan is substantially

inadequate to attain the NAAQS which Delaware implements , or to otherwise comply with any additional requirements established under the CAA. Based up on EPA’s review of the submittal, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)( H)

. **9 .**  **S ection 110(a)(2)(J)**  Section 121 (relating to c onsultation ). 7 DE Admin

. Code 1132, Transportation Conformity of the State of Delaware Governing the Control of Air Pollution, provides a legal platform for the various consultation procedures that have been developed between DNREC, the Delaware Department of Transportation (DELDOT), and the Metropolitan Planning Organizat ions (MPOs). The MPOs provide the forum for consultation with local governments. Delaware’s MPOs are: WI LM APCO, Kent County MPO, and the Salisbury

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

- state consultations. 7 DE Admi n. Code 1132 is included in the Delaware SIP. Additionally , consultations with Federal L and Managers are9

alway s ongoing in accordance with EPA rules (such as in the federal r egional h aze regulations)

. Section 127 (relating to public notification). All SI P revisions and new/amended regulations undergo public notice and hearing , pursuant to 7 Del. C. Chapters 29 and 60, which provides for publication in the newspapers and in the Delaware Register, and allow for comment by both the public and local politi cal subdivisions. T he public notice and hearing process also fulfill s the section 121 consultation process. Approved regulations in the Delaware SIP specify the organizations responsible for implementing and enforcing the plans. Inaddition, DNREC makes real time and historical air quality information available on its web site. PSD requirements necessary to implement the 20 10 SO 2 NAAQS are SI P approved and i mplemented through the requirements of 7 DE Admin. Code 1125, Preconstruction Review

. The late st Delaware PSD SI P was approved on October 2, 2012 (77 FR 60053). With regard to visibility

protection, there are no new applicable visibility protection obligations under section 110(a)(2)(J) as a result of the 20 10 SO 2 NAAQS. Delaware is complying with, and will continue to comply

with the visibility

protection and regional haze program requirements under part C of the CAA. EPA approved the Delaware regional haze SIP on July 19, 2011 (76 FR 42557). Based upon EPA’s review of the submittal, EPA is pr oposing to determine that the State has met its obligations pursuant to 110(a)(2)( J)

. **1 0**  **. Section 110(a)(2)(K** 

**)** As discussed in Delaware ’s May 29, 2013 SI P submittal, Delaware has the authority and technical capability

to conduct air quality

modeling i n order to assess the effect on ambient air quality relevant pollutant emissions and will continue to perform modeling. Delaware has a SIP approved PSD program (7 DE Admin Code 1125). Delaware will continue to submit to EPA the air quality

modeling data as part of Delaware’s relevant SIP submissions, permit actions, and through Federal grant commitments or in other way s that EPA may request
. Based upon EPA’s review of the submittal and the Delaware SI P , EPA is proposing to determine that the State has me t its obligations pursuant to 110(a)(2)( K)

. EPA is proposing to determine that Delaware has the authority and technical capability

to conduct air quality

modeling in order to assess the effect on ambient air quality of relevant pollutant emissions.
**1 1**  **. Section 110(a)(2)(L**  **)** Delaware has a fully

approved Title V operating permit program. See paragraphs (b) and (c) under “Delaware” in Appendix A to 40 CFR part 70

— Approval Status of State and L ocal10

Operating Permits Programs. Additionally , Delaware’s sub mission adequately address es this requirement by explaining that consistent with Delaware law, Delaware will continue to require the owner or operator of each major stationary

source to pay

to the permitting authority , as a condition of any permit required under the CAA , a fee sufficient to cover (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the t erms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under Title V pursuant to Delaware law. Delaware currently fulfills this under the enabling authority

of 7 Del. C

. , sections 6095 to 6099, and fee legislation that currently is renewed every

three years. Based upon EPA’s review of the submittal, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)( L)

. **1 2**  **. Section 110(a)(2)(M)**  Inthe May

29, 2013 SO 2 infrastructure SI P submittal, Delaware stated it will continue to provide for consultation and participation by local polit ical subdivisions affected by the SI P pursuant to the public notice laws found in 7 Del. C
. , sections 6006 and 6010, and 29 Del. C. Chapters 100 0 3, 10004, and 10115, as applicable. Furthermore, Delaware stated all Delaware SI P revisions undergo public not ice and hearing which ha s allowed for comment by the public which includes local political subdivisions. The public notice and hearing processes fulfill the requirements for consultation with local political subdivisions affected by the SI P. Based upon E PA’s review of the submittal, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)( M)

.
**F .**  **CONCLUSIONS AND RECOMMEND**  **ED AGENCY ACTION** EPA’s analy sis of Delaware’s infrastructure submittal and the Delaware SI P for th e 20 10 SO 2 N AAQS concludes that Delaware meet s the requirements of section s 110(a)(2)(A), (B), (C), (D) (i)(I I) , (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) as identified above

. EPA will take separate action on Delaware’s submittal for section 110( a)(2)(D)(i)(I ). Itis recommended that a notice of proposed rulemaking be prepared approving Delaware’s infrastructure submittal for the 20 10 SO 2 NAAQS with the exception of the portion addressing section 110(a)(2)(D)(i)(I)

.