February 29, 2012

Mr. Shawn M. GarvinRegion 3 Office Administrator

US Environmental Protection Agency

1650 Arch Street

Philadelphia, PA 19103-2029

DearAdmstLe4

This letter is in response to your December 9, 2011 letter to Governor Markell regarding

air quality designations for the 2008 National Ambient Air Quality Standard (NAAQS) forozone. I am disappointed that EPA has chosen to not consider our recommendation to establish

nonattainment boundaries consistent with the ozone problem. It has become increasingly clearthat the methodology EPA currently uses to set attainment boundaries has proven inadequate toachieve the result required by the Clean Air Act (CAA) of attaining air quality free of unhealthylevels of ozone in Delaware (and the northeast). Neither EPA’s non-attainment boundaries under

the 1997 8-hour standard nor the boundaries proposed here are sufficient. Delaware has

proposed and prior letters and analysis from Delaware demonstrate that large nonattainment areaboundaries are necessary to expeditiously and most cost-effectively provide for clean air, are

lèasible, and are consistent with the provisions of the CAA. This letter builds upon numerousprevious letters from Delaware on the topic of ozone designations, and explains why EPA’s

newest approach, of drawing an even smaller boundary is likewise unreasonable because it will

not cause any forward progress towards achieving the NAAQS in Delaware and will furtherharm Delaware businesses that are already implementing greater pollution control measures thanany of their competitors located in upwind states.

Delaware strongly opposes EPA’s decision to not establish large ozone non-attainment

area boundaries, and its intended non-attainment designations toward Delaware, We are

particularly troubled by what appears to be a cursory review by the EPA of Delaware’srecommendations and analysis, without substantive consideration or comment. EPA’s review ofDelaware’s recommendation is, in total, limited to three statements in your December 9, 2011

letter and associated technical support document (TSD): I) Delaware’s recommendation is not

in keeping with a plain reading of the CAA section 107(d) related to the contribution from a

“nearby” area with which we disagree, 2) there are other provisions of the CAA that address

longer range transport of ozone pollution, such as sections 11 0(a)(2)(D), 126, and 184 which we

believe should not obviate the need for proper designations, and 3) most of the states that

Delaware seeks to include as part ofthis large nohattainment area did not make a similar request

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The Comis have given an extreme degree of deference to EPA when it is evaluating

scientific data within its technical expertise, and EPA clearly has the ability and authority toextend their interpretation of “nearby” based on their scientific expertise. (See Pennsylvania v.EPA, where the court notes that a large area is one reasonable interpretation EPA could take.)Delaware believes that EPA’s policy decision to pursue the opposite approach of creating small

areas for ozone has repeatedly proven insufficient and that it continues to perpetuate nonattainment with ozone in the northeast because EPA has not adequately defined the term“nearby” relative to the pollutant of concern. Since transport is such an overwhelming part of

the ozone problem, any reasonable legal definition of “nearby” must include the emissions that

significantly contribute to non-attainment and interfere with maintenance in other areas. By this

policy logic, headwater states should be exempted from requirements to reduce nutrient pollutionaffecting waterbodies outside of their jurisdiction, like the Chesapeake Bay, because New Yorkwould not be considered “nearby” Maryland or Virginia. The authorities ofthe Clean Water Actare in fact weaker to require cross-state action, yet EPA has broadened its interpretation ofexisting CWA authorities to address cross-state water pollution while it appears to be going in

the opposite direction to address transport, despite much greater statutory authority in the CAAto require reductions.

Properly drawing the lines of the non-attainment boundaries in order to bring all the

contributing parties onto the same “playing field” is the first step towards achieving healthy air

quality. For this reason, we have been extremely supportive of the administration’s efforts tofinalize the Cross-State Air Pollution Rule both publicly and in the Courts, despite our ongoingfrustration that CSAPR is built upon the non-health based 1997 NAAQS for ozone of 84 ppm.Indeed, those states currently challenging EPA in court over the Cross-State Air Pollution Rule

and other regulations would have less incentive to fight pollution controls if they had their ownobligation to reduce their significant contribution of pollutants.

In response to EPA’s proposed designations on Delaware, we believe that they are not

reasonably drawn to lead to clean air in Delaware or elsewhere. EPA’s proposed designation

relative to Sussex County, DE will be used as an example. Briefly, Sussex County has a land

area of 600,320 acres, 269,464 acres (about 45%) of which are devoted to agriculture. SussexCounty is largely rural, with its largest municipality, Seaford, having a 2010 population of 6,928.

EPA evaluates in their TSD Sussex County relative to 5-factors’, and concludes:‘The 5-factors are: 1) Air quality data, 2) Emissions and emissions-related data3), Meteorology, 4) Geography and

topography, and 5) Jurisdictional boundaries. Note that EPA guidance identifies 9-factors, and EPA has reduced

this to 5-factors by combining under factor 2) the following 5-factors: Emissions data, PopulatIon density and

degree of urbanization, Traffic and commuting patterns, Growth Rates and Patterns, and Level of control of

emission sources.
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and VMT in the area of analysis. EPA has concluded that the other counties in thisanalysis are not likely to contribute to ozone violations in Sussex County. These countieshave comparatively low emissions, populations, and VMT. Kent County, Delaware; and

Cape May County, New Jersey have the next highest emissions, but those counties

emissions are about half that of Sussex C’ounty ‘s. Dominant ozone season winds are

from the south-south west. ThLc indicates that emissions from Kent County and the

counties in New Jersey are not expected to contribute to violations at the Sussex County,

Delaware monitors. Dorchester, Wicomico, and Worcester Counties in Maryland areupwind of the violating monitors. However, emissions from those counties arecomparatively low suggesting that emissions from those counties would contribute little

to violations in downwind Sussex County. Furthermore, the other counties in the area of

analysis are not linkedjurisdictionally to Sussex County and are not part ofthe Seqford

Micropolitan Statistical Area.”

First, Delaware notes that a significant difference between Sussex County and all but two

of the “nearby” counties EPA analyzed is that Sussex has ozone monitors. EPA’s methodology

does not consider the air quality in any county that does not have an ozone monitor. For

example, the Seaford monitor in Sussex County is located only 8.5 kilometers from the Maryland

boarder (see map below), and is arguably representative of the air quality in Dorchester County,MD. EPA’s determination that Dorchester County, MD is attainment and Sussex County, DE isnon-attainment can only be explained as EPA ignoring science or that the value of the datacollected at Seaford does not extend beyond 8.5 Kilometers. This logic indicates the scope of the

nonattainment problem in Sussex is within a circle with a diameter of 8.5 kilometers, centered on

the Seaford monitor. 2

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areas in Sussex County have ozone monitors; Seaford and Lewes. 2009-2011 design values indicate the

Lewis area is attaining compliance with the 0.075 ppm ozone NAAQS.

Extent of Non-Attainment?
interpretation of the word “nearby” in CAA 107(d), it is critical that all areas that are not

attaining the standard be identified. Not first identifying all areas, to include both whole and

partial counties, that are non-attainment not only results in those areas being incorrectly

designated, but also all areas that are “nearby.” For example, as discussed above the air qualityin at least a portion of Dorchester County, MD is non-attaimnent based on the Seaford, DE

monitor. Given this, even under the EPA methodology the contribution analysis should be

expanded from including just the counties that surround Sussex, DE to also including those thatsurround Dorchester County, MD. And, given that counties (and probably partial counties)

across the Chesapeake Bay are non-attainment, the “nearby” areas EPA would analyze becomesbroader. The fact that an area does not have a monitor 1) does not mean the air quality in that

area meets the NAAQS, and 2) should not shield other areas that significantly impact such anunmonitored area from being designated non-attainment. Certainly, it is not reasonable to

conclude without analysis that areas contiguous to nonattainment areas without monitors shouldbe classified as attainment.

Nevertheless, EPA is proposing to establish Sussex County as a standalone nonattainment area. 3 As a non-attainment area Sussex is required by the CAA to come into

compliance with the ozone NAAQS as soon as practicable and not later than 20l5. As amarginal non-attainment area Sussex will be subject to various requirements under the CAAintended to reduce emissions within the non-attainment area boundaries: reasonably available

control technology (RACT) corrections, savings clause for vehicle inspection and maintenance,

non-attainment NSR, 3-year PEIs, annual emissions statements from stationary sources, and

1:1 .1 emission offset requirements. However, Sussex has already met all of these requirements.

Below is a list of the ozone control measures (i.e., controls for emission of volatile organic

compound (VOC) and nitrogen oxides (NOx)) currently implemented and enforced in SussexCounty:

• Construction and operating permits are required for any stationary source emitting 10

pounds per day or greater of any air contaminant.

• NOx emission control requirements are imposed on maj or NOx emitting equipment,

and fuel burning equipment with maximum rated heat input of 15 million BTUs or

greater.

Note that the EPA methodology could have resulted in two outcomes, 1) Sussex as a standalone area, or 2)

Sussex and one or more of the surrounding rural counties as a non-attainment area. Neither of these outcomesare capable of addressing the air quality problem in Sussex!

The attainment date will be based on EPA’s final implementation rule. Presumably Sussex will be classified as

“marginal non-attainment,” with an attainment date of 2015.
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• Outdoor burning is banned during the ozone season.

• General VOC handling and disposal requirements are imposed on all stationary

sources, to include a generally applicable VOC content limitation of 50 gIl.

• All VOC emitting operations are regulated for the following source categories:

o Aerospace Coating

o Mobile Equipment Repair and Refinishingo Surface Coating of Plastic Parts.

o Automobile and Light-Duty Truck Coating Operations

o Can Coatingo Coil Coating

• a Paper, Film, and Foil Coating

o Fabric Coating

o Vinyl Coatingo Coating of Metal Furnitureo Coating of Large Appliances

o Coating of Magnet Wire

o Coating of Miscellaneous Metal Parts

o Coating of Flat Wood Paneling

o Bulk Gasoline Plantso Bulk Gasoline Terminals.

o Gasoline Dispensing Facility Stage I Vapor Recovery.

o Gasoline Tank Trucks

o Petroleum Refinery Sources

o Leaks from Petroleum Refinery Equipment

o Petroleum Liquid Storage in External Floating Roof Tankso Petroleum Liquid Storage in Fixed Roof Tanks

o Leaks from Natural Gas/Gasoline Processing Equipmento Solvent Cleaning and Drying.o Cutback and Emulsified Asphalt

o Manufacture of Synthesized Pharmaceutical Productso Stage II Vapor Recoveryo Graphic Arts Systems

o Petroleum Solvent Dry Cleanerso Leaks from Synthetic Organic Chemical, Polymer, and Resin Manufacturing

Equipment.

o Manufacture of High-Density Polyethylene, Polypropylene and Polystyrene

Resins
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o Crude Oil Lightering Operations.

o Offset Lithographic Printing and Letterpress Printing.

o Reactor Processes and Distillation Operations in the Synthetic Organic

Chemical Manufacturing Industry.

o Control of Volatile Organic Compound Emissions from Volatile Organic

Liquid Storage Vessels

o Any other facilities that emit VOCs that is not covered above.

• Any new VOC or NOx source with potential emissions equal to or greater than 5

TPY must be controlled by best available control technology.

• Any major new or modified VOC source with potential emissions greater than 50

TPY, or NOx emissions greater than 100 TPY must be controlled by lowestachievable emission rate technology, and must secure offsets at a rate of 1.15:1.

• On-road vehicles are subject to centralized inspection and maintenance program

requirements.

• On-road mobile emissions are managed under Transportation Conformity

requirements.

• Federal actions with emission increases of 100 TPY NOx or 50 TPY VOC are subject

to General Conformity Requirements.

• Model year 2014 and newer vehicles must be CA LEV II certified.

• The allowable VOC content of paints and coatings used in Delaware are limited to

levels much lower than the federal requirements.

• The allowable VOC content of many consumer products (e.g., perfume, bug killer,

nail polish remover, etc.) used in Delaware are limited to levels much lower than the

federal requirements.

• Stringent NOx emissions limitations apply to various industrial boilers that were not

appropriately controlled prior to 2001 is required.

• Stationary generators must meet stringent emission limitations, based on selective

catalytic reduction technology, in order to operate in demand response programs.

• Excessive Idling of Heavy Duty Vehicles is prohibited.
1990 Sussex Emissions In tons/year Annual itoris)Pollutant Point Area. On-road Off-road Total

VOC 1891 4884 4877 819 12471

NOx 18043 759 5256 1898 25956

2008 Sussex Emissions in tons/year Annual (tons)

Pollutant Point Area On-road Off-road Total

VOC 1587 2361 2013 3140 9101

NOx 7724 574 5113 3109 16520

2012 Sussex Emissions in tons/year Annual (tons) — F Pollutant Point Area On-road Off-road Total

VOC 1594 1925 2048 2340 7907

NOx 1701 581 2626 3811 8718

The above comparison demonstrates that Sussex County emission sources are already

well controlled, contributing less than 4 ppb ozone concentration, and that the cost-effective andtechnically feasible control measures already in place in Delaware are producing results that

could be replicated upwind. 5 And, because the above control measures have been appliedstatewide and similar reductions have occurred in the other two Delaware counties, there are no

reasonable and cost-effective measures that Delaware can take to further reduce ozone

concentrations in Sussex. So comes the dilemma: the air quality in Sussex County is unhealthyto breathe, and the CAA requires attainment as expeditiously as practicable but not later than

2015,Reducing

yet no reductions are required in Delaware nor in the states that are causing the problem 6.

ozone levels requires reduction in NOx and VOC emissions, EPA’s chosen strategy set

in motion by its decisions on boundary designations would cause no such reductions anywherewithin the timeframe mandated by the CAA. This makes EPA methodology nonsensical and one

that is designed to fail. However, failure will only bring repercussions to Sussex County (who

has taken great steps to reduce pollution) and not the contributing upwind areas (who are

permitted to pollute with abandon and try to avoid installing even the most cost effective of

pollution controls).

EPA’s recent Cross State Air Pollution Rule (CSAPR) modeling helps confirm that Sussex County emissions are well

controlled. CSAPR 2012 base case modeling indicates that all Delaware anthropogenic emissions (i.e., statewide

emissions) contribute less than 4ppb ozone concentration to Sussex County.

6

cause of the Sussex County ozone problem is emissions from outside of Delaware. This is confirmed by many

modeling studies, the most recent being EPA’s 2012 base case CSAPR modeling. CSAPR modeling indicates that

Sussex is impacted by 56 ppb from anthropogenic emissions that originate outside of Delaware
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given Delaware’s record of implementing aLl cost-effective and technically feasible control

measures. Sussex has already completed its focus on local control measures, and since the nonattainment boundaries do not extend beyond Sussex County boundaries no other areas will be

required to focus on local control measures. So the EPA methodology results in the entire

problem of transport not being addressed. The EPA has suggested in its December 9, 2011 and

associated TSD that CAA sections 11 0(a)(2)(D), 126, and 184 are the ways available to

Delaware to reduce transport.

• Section 11 0(a)(2)(D). SIPs were due in March 2011 that demonstrated all significant

impact on DE has been mitigated. ‘ EPA’s historical approach has been to address

compliance with 11 0(a(2)(D) through federal transport rules and FIPs. The transport

rule for the 1997 ozone standard is now stayed by the Courts, and the EPA has not yet

proposed

a transport rule for the 0.075 ppm ozone NAAQS. Delaware agrees that

11 0(a)(2)(D) required upwind states to mitigate their impact on DE, and that they have

not yet done this. The CAA requires the EPA to take action to require states to complywith 11 0(a)(2)(D). It is not clear what action the EPA is suggesting that Delaware can

take under 11 0(a)(2)(D) to require upwind reductions.

• Section 126. Delaware has submitted two CAA 126 petitions in the past, and the EPA

has failed to act on them. If we submit another petition it will likely be largely based onthe work the EPA has done under CAIR, CSAPR, etc. Delaware can submit another

petition, but since the EPA is already obligated to require these reductions under CAA

11 0(a(2)(D), and since we would be primarily using EPA modeling data to support a

petition, and since the EPA is the approval authority wc are not sure why EPA would

place such burden on our limited resources to accomplish what should be reasonably

accommodated through appropriate boundary designation. If Delaware does expend

resources to submit another 126 petition, as the EPA appears to be suggesting, is the EPA

in turn committing to review and approve our third petition in accordance with the timing

mandated in the CAA? Under Section 126 of the Clean Air Act, which addresses

interstate pollution abatement, any state or political subdivision may petition the EPA

Administrator for

a finding that

a major source or group of sources is violating the act’s

prohibition of emissions contributing significantly to nonattainment or interfering with

the maintenance of attainment in another state. EPA has 60 days to make a finding in

response to such

a petition. If the Administrator found that out-of-state sources were

significantly contributing to an area’s nonattainment, the out-of-state sources would have

to shut down within three months unless EPA imposed emission limits and a compliance

schedule of not more than three years. According to

a March 4, 2010 Congressional

‘

CAA 11O(a)(2)(d) required all areas except for non-attainment areas to mitigate their impact before March 2011.

Mitigation for non-attainment areas is required in the timing of the CAA 181.
modeling clearly show upwind states significantly impact the existing 01’R. Delaware

can submit

a request, but given the EPA has the authority to do this on their own, and

a

DE request would be largely based on EPA data, and since EPA is the approval authority,

we are not sure what we will gain. Is the EPA suggesting that if Delaware submits

a

request the EPA will expedite its approval?

Given the above, the EPA designation methodology appears to leave Delaware with no

clear options. Sussex County is required to attain compliance with the ozone NAAQS as

expeditiously as practicable, but not later than 2015, yet Delaware does not have the authority to regulate the emissions that are causing the ozone non-attainment problem in Sussex County. And, as a non-attainment area, it is penalized because its sources must comply with stringent emission regulations, its new sources must comply with stringent limitations and must acquire

scarce and expensive emission offsets, and its citizens continue to be exposed to breathing unhealthy air. In comparison, the upwind states that are the cause of the problem do not have

any of these issues and enjoy an unfair competitive advantage economically and better public health outcomes. EPA is applying the CAA such that the victim is penalized, and the upwind contributing states are allowed to continue and increase their impact with impunity. And all this

stems from the EPA’s extremely narrow and inaccurate interpretation of the word “nearby” in

Section 107(d) ofthe CAA.

So, by designating Sussex County as nonattainment, EPA has set up a situation where

Delaware is totally dependent on the EPA to require emission reductions in upwind states toclean up the air in Sussex County. If EPA does not require upwind states to mitigate their

impact, Delaware has no hope of attaining the standard because as discussed above, it is the

upwind areas that are causing the air quality problem in Sussex. If Delaware does not attain,

through no fault of its own, it will be bumped up to a higher classification. Sussex has already complied with the requirements of the higher classification under prior ozone NAAQSs (i.e.,

reasonable further progress, CTG and non-CTG RACT, Gasoline vapor recovery, Motor vehicleinspection and maintenance, emission offsets at 1.15:1). However, the reasonable further

progress requirement would be applied again. Sussex emission sources are well controlled (see

above), yet

a bump-up would require Sussex emissions to be reduced by at least an additional

15%. This result is patently unfair to Delaware businesses that are already doing more to reduce

emissions that competitors in upwind states and which would be placed at an even greater

economic disadvantage by being required to do more. It is untenable that under the EPA

methodology Delaware could be subject to unhealthy air quality and even higher emission

control costs, when the emissions in upwind states that cause the problem are not subject to

appropriate control.

Clean Air After the CAIR Decision: Multi-Pollutant Approaches to Controlling Powerplant Emissions, Congressional

Research ServIce, 7-5700, March 4, 2010
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both environmentally and economically, that many upwind states stay untouched while manydownwind states are targeted and forced to struggle with costly controls over their already well

controlled sources. In fact, the EPA methodology sets up a situation where the upwind states

receive an even greater competitive advantage that will enable them to pursue economic growth

(i.e., increase emissions) that will further impact DE air quality. Delaware urges that EPA

reconsider its preliminary intentions of (1) not establishing large nonattainment area boundaries

in the east part of the country, and (2) designating Delaware’s three counties into three different

and separate attainment/non-attainment areas. Either of EPA’s intentions would inevitably

impose additional, unrealistic and unacceptable burdens on Delaware. We look forward to seeing

EPA’s serious and careful considerations on our recommendations and comments, and are

willing to continue working closely with EPA on relevant issues.

cc: Ali Mirzakhalili

Diana Esher

Secretary