**UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION III**  **1650 Arch Street Philadelphia, Pennsylvania 19103**  **DATE:** August 12, 2013 **SUBJECT:** Technical Support Document for the Delaware State Implementation Plan for the

In frastructure Requirem ents for the 2008 Ozone 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. INTRODUCTIO N**  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 2008 8
- hour ozone national ambient air quality standards (NAAQS ).
**B . BACKGROUND**  On March 27, 2008 (73 FR 16436) , EPA promulgated a revised NAAQS for ozone based on 8
- hour average concentrations. EPA revised the level of the 8
- hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm. Pursuant to s ection 110(a) of the CAA , states are required to submit state implementation plans (SI Ps) that provide for the implementation, maintenance, and enforcement of new or revised NAAQS within three years following the promulgation of such NAAQS. Section 110(a) of th e CAA imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS. For the 2008 8
- hour ozone NAAQS, states ty pically have met many

of the basic program elements required in section 110(a)(2) of the CAA through earlier SIP submissions in connection with previous ozone 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 SI P infrastructure elements such as requirements f or 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 2008 8
- hour ozone NAAQS, s tates must provide SI P submissions , or provide certific ation 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 March 27, 2013 , Delaware provided a submittal to satisfy the requirements of se ction 110(a) (2) of the CAA for the 2008 8
- hour ozone 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) o f the CAA
. **E. EVALUATION OF STATE SUBMITTAL 1.**  **Section 110(a)(2)(A)** EPA has determined that Delaware has established laws and regulations applicable to the 2008 8
- hour ozone NAAQS that include enforceable emissions limitations and other control mea sures, 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 1 3 , 1124, 1141, 1144, 1145, 11 46 , and 11 48
. These regulations are identified as part of the Delaware SIP at 40 CFR 52.420(c). Those enforceable emission limitations and schedules are also contained in Delaware’s submitted Reasonable Further Progress (RFP) an d attainment demonstration SI Ps that were approved on April 8, 2010 (75 FR 17863) and October 5, 2012 (77 FR 60914) , respectively
. At present, statutory

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

—Delaware’s comprehensi ve water and air resources conservation law. Legislative 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 a uthority is applicable to the 2008 8
- hour ozone NAAQS. Inthis 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) of operations at a facili ty . 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 D uring Malfunctions, Startup, and Shutdown”), and EPA plans to address such state regulations in a separate rulemaking action . In the meantime, EPA encourages any s tate having a deficient3

SSM provision to take steps to correct it as soon as possible
. Als o 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 E PA guidance (see 52 FR 45109, November 1987), and EPA plans to take separate rulemaking action to address such state regulations. In the meantime, EPA encourages any s tate 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 qual ity
. Th ese regulation s are included in Delaware’s approved SI P listed in 40 CFR 52.420(c) which appl ies to the 2008 8
- hour ozone NAAQS. Delaware has established and currently operates appropriate devices, methods, sy stems, and procedures necessary

to mon itor, 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 the State to measure ambient air quality lev els within Delaware for comparison to each NAAQS as required by

40 CFR part 58. Seasonal (April

– October) ozone monitoring is currently performed at various locations throughout Delaware. All data is measured using EPA approved methods as either Referen ce 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 sites that have met the minimum siting requirements of 40 CFR p art 58, Appendix E. The data is subm itted 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 informed 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, Delaware sends EPA a monitoring network plan as required by 40 CFR p art 58, section 10 (Annual Monit oring Network Plan and Periodic Network Assessment)
. EPA approved Delaware’s 2012 Annual Air Quality Monitoring Network Design Plan on February 21, 2013.4

This 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 the EPA in 40 CFR p art 58. Base d 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, means, or techniques, as well as schedules and time tables for the compliance, as may be necessary

or appropriate, to meet the applicable requirements of the CAA and to regulate modification a nd 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 pres ent, 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 6018 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 federally
- approved SI P ensure that the construction and modification of both major and minor stationary sources do not cause or contribute to a violation of the ozone NAAQS. SI P approved 7 DE Admin. Code 1102 provides for the evaluat ion and necessary regulation of any stationary

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

one day
. SI P approved 7 DE Admin. Code 1125 governs preconstruction review and permitting of any new or mo dified major stationary sources 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 ).5

**4. Section 11**  **0(a)(2)(D) Section 110(a)(2)(D)(i)(I)**  Inaccordance with the decision 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 SI P s ubmission. See EME Homer City Generation, LP v. EPA , 696 F.3d 7 (D.C. Cir. 2012), cert 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. Ci rcuit 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. Delaware’s March 27, 2013 infrastructure SIP submission for the 2008 8
- hour ozone NAAQS included information related to section 110(a)(2)(D)(i)(I )
. EPA will address this element in a separate action. **Section 110(a)(2 )(D)(i)(II)**  For al l areas of Delaware, a SI P
- approved PSD program (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 Del aware has met its obligations pursuant to 110(a)(2)(D)(i)(I I) for the p art C permit program
. 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 interf

ering with measures to protect visibility required to be included in another state’s SIP
. Delaware’s regional haze SI P was approved on July 19, 2011 (76 FR 42557) and prohibits emission sources in Delaware from emitting air pollutants which would interfer e with measures which protect visibility
. 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 ) (i)(I I )
. **Section 110(a)(2)(D)(ii)** Neither Delaware nor any facility in Delaware is subject to a section 126 rule . Delaware has no currently pending obligations pursuant to CAA 126(b) or (c)
. In Delaware ’s March 27, 2013 submittal, Delaware demonstrate d that it has adequate provisions insuring future compliance with the requ irements of sections 126 and 115 of 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)( D ) (ii)
.6

**5 .**  **Section 110(a)(2)(E)** For section 110(a)(2)(E)(i), Delaware ha s adequate authority under state law pursuant to 7 Del. C. Chapter 60 to carry out its SI P obligations with respect to the 20 08 8
- hour ozone 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 states it fulfills this obligation by virtue of having adequate personnel and fund ing 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 a dministrative penalties or fines under 7 Del. C. Chapter 60
. The Division of Air Quality is responsible for developing, implementing and enforcing the SIP. Delaware complies with the requirements of section 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). The requirements 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
. These regulations are included in Delaware’s approved SIP and are listed in 40 CFR 52.420(c) and also apply to the 2008 8
- hour ozone NAAQS. Delaware’s SI P requires that owners or operators of stationary sources monitor and submit periodic reports on the nature and amounts of ozone emissions and emissions relate d
- dat a emissions from the sources. This may include the installation, maintenance and replacement of equipment, where appropriate. This information submitted to DNREC is available to the public at reasonable times for public inspection pursuant to Delawa re law. Delaware has stated it will continue to require reporting of emissions. 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 Freedom7

of Information Act, 29 Del
. C. Chapter 100. Other aspects of Delaware’s program for 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 1112, 1123, 1124, 1126, 1131, 1137, 1139, 1140, 1141, 1142 and others in the approved Delaware SI P, 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 t o that in section 303 of the CAA and adequate contingency plans to implement such authority
. At present, 7 Del

. C. section 6003(a)(1) requires a permit from the Secretary prior to discharging any air contaminant. 7 Del. C. section 6002(2) defines air c ontaminant 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, and to issu e a cease and desist order for violations (7 Del. C. section 6018). Therefore, if any discharge of an air contaminant, including ozone , would cause imminent and substantial endangerment to the health, safety and welfare of the people of the State of Delaw are 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 SI P 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 , De laware has demonstrated that it has adequate authority under the Delaware Code, Chapter 60, Title 7 “Conservation” to revise the SIP. Th i s submission 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 and, whenever the Administrator finds, on the basis of information available to the Administrator, that8

the plan is substantially

inadequate to attain the NAAQS which it implements, or to otherwise comply with any additional requirements established under 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)( H)
. **9 .**  **S ection 110(a)(2)(I**  **)** EPA does not expect infrastructure SI P submissions to address this element. Nonattainment area plans required under part D of Title I of the CAA are required on a different schedule from section 110(a)(2) infrastructure elements of the CAA and thus, will be reviewed and acted upon through a separate process.
**10 .**  **S ection 110(a)(2)(J)**  Section 121 (relating to c onsultation ). 7 DE Admin
. Code 1132, Transportat ion 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 (DEL DOT), and the Metropolit an Planning Organizations (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 cons ultations. 7 DE Admin. Code 1132 is included in the Delaware SIP. Additionally , consultations with Federal L and Managers are alway s ongoing in accordance with EPA rules (such as in the Regional Haze regulations)
. Section 127 (relating to public notifi cation). 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 for comment by both the public and loca l political subdivisions. T he public notice and hearing processes also fulfill the section 121 consultation process. Approved regulations in the Delaware SIP specify the organizations responsible for implementing and enforcing the plans. Inaddition, DN REC makes real time and historical air quality

information available on its web site. PSD requirements necessary to implement the 2008 8
- hour ozone NAAQS are SI P approved and i mplemented through the requirements of 7 DE Admin. Code 1125, Preconstruction Review. The latest 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 2008 8
- hour ozone 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 July9

19, 2011 (76 FR 42557). Based upon EPA’s review o f the submittal, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)( J)
. **1 1**  **. Section 110(a)(2)(K** 

**)** Delaware has the authority and technical capability

to conduct air quality

modeling in order to assess the effect on ambient air quality relevant pollutant emissions and will continue to perform modeling. Delaware will continue to submit to EPA the air quality modeling data as part of Delaware’s relevant SI P submissions, permit actions, and through Federal grant comm itments or in other way s that EPA may request
. 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)( K)
. **1 2**  **. Section 110(a)(2)(L**  **)** Delaware’s submissions adequately address 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 suffic ient 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 terms and conditions of any s uch 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. Delaware also has a fully approved Title V operating permits program. See paragraphs ( b) and (c) under “Delaware” in Appendix A to 40 CFR part 70

— Approval Status of State and L ocal Operating Permits Programs. 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 3**  **. Section 110(a)(2)(M)**  Inthe March 27, 2013 SI P submittal, Delaware stated it will continue to provide for consultation10

and participation by

local political 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 notice and hearing which have allowed for comment by the public which includes local politica l subdivisions. The public notice and hearing processes fulfill the requirements for consultation with local political subdivisions affected by the SI P. Based upon EPA’s review of the submittal, EPA is proposing to determine that the State has met its ob ligations pursuant to 110(a)(2)( M)
. **F .**  **CONCLUSIONS AND RECOMMEND**  **ED AGENCY ACTION** EPA’s analy sis of Delaware’s infrastructure submittal for the 2008 8
- hour ozone N AAQS concludes that Delaware’s submittal meet s the requirements of section 110(a)(2)(A), (B), (C), (D) (i)(I I) , (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA, as identified above
. Itis recommended that a notice of proposed rulemaking be prepared approving Delaware’s infrastructure submittal for the 2008 8
- hour ozone NAAQS
.