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 

Infrastructure Requirements 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. 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 for 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 section 110(a) of the CAA, states are required 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. Section 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 2008 8-hour ozone NAAQS, states typically 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 

SIP infrastructure elements such as requirements for modeling, monitoring, and emissions 

inventories that are designed to assure attainment and maintenance of the NAAQS. 
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C. EPA REQUIREMENTS

As discussed above, for the 2008 8-hour ozone NAAQS, states must provide SIP submissions, or 

provide certification that the existing SIP contains provisions addressing relevant infrastructure 

SIP elements from sections 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 section 

110(a)(2) of the CAA for the 2008 8-hour ozone NAAQS. This submittal addressed the 

following infrastructure elements that EPA is proposing to approve: Section 110(a)(2)(A), (B), 

(C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of 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 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. Codes 1113, 1124, 1141, 1144, 1145, 

1146, and 1148. 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) and attainment demonstration SIPs 

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 comprehensive 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 authority is applicable to the 2008 8-hour ozone NAAQS.

In this action, EPA is not proposing to approve or disapprove any existing Delaware provisions 

with regard to excess emissions during startup, shutdown, and malfunction (SSM) of 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, Startup, and Shutdown”), and EPA plans to address such state regulations 

in a separate rulemaking action. In the meantime, EPA encourages any state having a deficient 
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SSM provision to take steps to correct it as soon as possible. 

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 plans to take separate rulemaking action to address such state 

regulations. In the meantime, EPA encourages any state having director’s discretion or variance 

provisions 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 1103 – “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 analyze data related to ambient air 

quality. These regulations are included in Delaware’s approved SIP listed in 40 CFR 52.420(c) 

which applies to the 2008 8-hour ozone NAAQS.

Delaware has established and currently operates appropriate devices, methods, systems, and 

procedures necessary to monitor, compile, and analyze 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 levels 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 Reference or Equivalent monitors. 

All monitors are subjected to the quality assurance requirements of 40 CFR part 58, Appendix A, 

and all samplers are located at sites that have met the minimum siting requirements of 40 CFR 

part 58, Appendix E. The data is submitted to EPA’s Air Quality System (AQS) in a timely

manner in accordance with the schedule prescribed by EPA in 40 CFR part 58.

In order to keep EPA informed of changes to the sampling network, DNREC provides EPA 

Region III 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 part 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. 
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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 system, in a timely

manner, pursuant to the schedule prescribed by the EPA in 40 CFR part 58. 

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. Section 110(a)(2)(C)

Delaware has established and currently operates a program to provide for the enforcement 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 and construction of any

stationary source within areas covered by its SIP as necessary to assure the NAAQS are achieved. 

Aspects of Delaware’s program for enforcement are found in those SIP-approved provisions of 

7 DE Admin. Codes 1102 and 1125. 

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 6018 entitled “Cease and desist order.” 

Delaware implements its Construction and Operation Permit Program requirements under 7 DE 

Admin. Codes 1102 and 1125. These existing permitting programs which are part of the 

federally-approved SIP 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.

SIP approved 7 DE Admin. Code 1102 provides for the evaluation and necessary regulation of 

any stationary source that emits equal to or greater than 0.2 pounds of any air contaminant, 

including ozone, in any one day.

SIP approved 7 DE Admin. Code 1125 governs preconstruction review and permitting of any

new or modified major stationary sources of air pollutants as required in Part C of Title I 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)(C). 

 
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4. Section 110(a)(2)(D)

Section 110(a)(2)(D)(i)(I)

In accordance with the decision of the U.S. Court of Appeals for the District of Columbia (D.C. 

Circuit Court), EPA at this time is not treating the 110(a)(2)(D)(i)(I) SIP submission from 

Delaware as a required SIP submission. See EME Homer City Generation, LP v. EPA, 696 F.3d 

7 (D.C. Cir. 2012), cert granted, 2013 U.S. App. LEXIS 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) SIP 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 all areas of Delaware, a SIP- 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 Delaware has met its obligations pursuant to 

110(a)(2)(D)(i)(II) for the part C permit program. 

Prong 4 of section 110(a)(2)(D)(i)(II) requires that SIPs include provisions prohibiting any source 

or other type of emissions activity in one state from interfering with measures to protect visibility

required to be included in another state’s SIP. Delaware’s regional 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 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)(II). 

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 demonstrated that it has adequate provisions insuring future compliance 

with the requirements 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). 
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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 SIP obligations with respect to the 2008 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 SIP obligations. Furthermore, 

Delaware’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 

funding through the CAA section 105 grant process (Federal 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. 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, “Laws Regulating the Conduct of Officers and 

Employees of the State,” which EPA approved as a SIP 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 regulations governing the control of air pollution, including 7 DE Admin. Codes 

1103 and 1117. 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 SIP requires that owners or operators of stationary sources monitor and submit 

periodic reports on the nature and amounts of ozone emissions and emissions related-data

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 Delaware 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 Freedom 
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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 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. 

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 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, and to issue 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 Delaware or the environment, the Secretary may seek an injunction or temporary

restraining order to halt the violation.

Delaware’s SIP 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 SIP submission, Delaware has demonstrated that it has adequate authority under the 

Delaware Code, Chapter 60, Title 7 “Conservation” to revise the SIP. This submission also 

provides 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 standards and, 

whenever the Administrator finds, on the basis of information available to the Administrator, that 
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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. Section 110(a)(2)(I)

EPA does not expect infrastructure SIP 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. Section 110(a)(2)(J)

Section 121 (relating to consultation). 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 Organizations 

(MPOs). The MPOs provide the forum for consultation with local governments. Delaware’s 

MPOs are: WILMAPCO, Kent County MPO, and the Salisbury-Wicomoco MPO. Regional 

planning organizations provide the forum for inter-state consultations. 7 DE Admin. Code 1132 

is included in the Delaware SIP. Additionally, consultations with Federal Land Managers are 

always ongoing in accordance with EPA rules (such as in the Regional Haze regulations). 

Section 127 (relating to public notification). All SIP 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 local political subdivisions. The 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. In addition, DNREC 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 SIP approved and 

implemented through the requirements of 7 DE Admin. Code 1125, Preconstruction Review.

The latest Delaware PSD SIP 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 July
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19, 2011 (76 FR 42557).

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)(J). 

11. 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 SIP submissions, permit actions, and through Federal grant commitments or 

in other ways 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). 

12. 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 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 terms 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. 

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 Local 

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). 

13. Section 110(a)(2)(M)

In the March 27, 2013 SIP submittal, Delaware stated it will continue to provide for consultation 
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and participation by local political subdivisions affected by the SIP pursuant to the public notice 

laws found in 7 Del. C., sections 6006 and 6010, and 29 Del. C. Chapters 10003, 10004, and 

10115, as applicable. Furthermore, Delaware stated all Delaware SIP revisions undergo public 

notice and hearing which have 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 SIP.

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)(M). 

F. CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA’s analysis of Delaware’s infrastructure submittal for the 2008 8-hour ozone NAAQS 

concludes that Delaware’s submittal meets the requirements of section 110(a)(2)(A), (B), (C),

(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA, as identified above. It is 

recommended that a notice of proposed rulemaking be prepared approving Delaware’s 

infrastructure submittal for the 2008 8-hour ozone NAAQS.