DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Air and Waste Management

Statutory Authority: 7 Delaware Code, Chapter 60 (70 Del.C. Ch. 60)

FINAL

FINAL ORDER

1102 Permits

Secretary’s Order No.: 2005-A-0049

I. Background

On Thursday, August 25, 2005, a public hearing was held at 6:00 p.m. in the DNREC Auditorium of the Richardson and Robbins Building, 89 Kings Highway, Dover, Delaware, to receive comment on the planned adoption of a new Air Quality regulation, Regulation No. 1144, “Control of Stationary Generator Emissions”, and corresponding amendments to Regulation No. 1102, “Permits”. Regulation No. 1144 will impact any owner of a stationary generator, except the owner of the following: any mobile generator; residential generator for emergency use only; certain generators whose emissions are already well controlled; or generators with a standby power rating of 10 kW or less. The amendments to Regulation No. 1102 will clarify the permitting requirements for owners of stationary generators.

Delaware is not in compliance with Federal Air Quality standards for ground-level ozone and fine particulate matter (PM2.5). Among other things, the purpose of Regulation No. 1144 is to help ensure that the air emissions from new and existing stationary generators do not cause or contribute to these existing air quality problems. Regulation No. 1102 is being amended to clarify construction and operation permitting requirements as they apply to stationary generators.

Oral comments were received from members of the public that attended this hearing back in August, as well as written comments, which were received by the Department prior to the close of the public record regarding these proposed regulatory promulgations. The Department provided satisfactory responses to the questions posed by the public at the hearing in August, and also provided a Response Memorandum addressing the written comments entered into the record of this matter. Proper notice of the hearing was provided as required by law.

After the hearing, the Hearing Officer prepared her report and recommendation in the form of a Hearing Officer’s Report to the Secretary dated December 13, 2005, and that report is expressly incorporated herein by reference.

II. Findings and Conclusions

On the basis of the record developed in this matter, it appears that AQM has provided a sound basis for the proposed regulatory actions with regard to new Regulation No. 1144 and the amendments to existing Regulation No. 1102. Furthermore, the Department has given careful and serious consideration to all comments provided by the public with respect to this issue, and AQM’s recommended conclusions with respect to each comment and the proposed action to be taken by the Department are well-reasoned and based on the record.

III. Order

It is hereby ordered that the proposed adoption of Regulation No. 1144, “Control of Stationary Generator Emissions” and the proposed amendments to Regulation No. 1102, “Permits” should be promulgated in final form in accordance with the customary and established rule-making procedure required by law.

IV. Reasons

The adoption of Regulation 1144 will aid the State of Delaware in ensuring that emissions from new and existing stationary generators do not cause or contribute to the existing air quality problems with regard to ground-level ozone and fine particulate matter, thereby adversely impacting public health, safety and welfare. Moreover, the amendments to existing Regulation 1102 will result in clarification to existing construction and operating permitting requirements as they apply to stationary generators, and will assist the Department in furtherance of the policy and purposes of 7 Del.C., Ch. 60.

John A. Hughes, Secretary

Date of Issuance: December 14, 2005

Effective Date of the Amendment: January 11, 2006

1102 Permits

06/01/97

Section 1 - General Provisions

1.1 This regulation establishes the procedures that satisfy the requirement of 7 Del.C. Chapter 60 to report and obtain approval of equipment which has the potential to discharge air contaminants into the atmosphere, and, for construction or modification activities not subject to Regulation No. 25, the procedures that satisfy the requirement of 40 CFR Part 51 Subpart I (July 7, 1994 edition) and Section 110(a)(2)(C) of the federal clean air act (CAA) as amended November 15, 1990.

1.2 This regulation establishes procedures that enable a person to, as an option, secure federally enforceable terms and conditions in a permit issued pursuant to this regulation.

1.3 This regulation establishes procedures that enable a person subject to both this regulation and to Regulation No. 30 to, as an option, transfer the terms and conditions of a construction permit issued pursuant to this regulation into a Regulation No. 30 operating permit via the administrative permit amendment process specified in Regulation No. 30.

1.4 Within sixty (60) calendar days of receipt of a written request by the Department, an owner or operator of an existing facility, equipment, or air contaminant control device which emits or causes to be emitted any air contaminant shall submit to the Department any relevant information that the Department may request. Relevant information includes information that, in the Departments opinion, is relevant to any permit application/registration or that is necessary to determine the applicability of or compliance with any State or Federal requirement, any permit term or condition, or any condition of registration. Such information also includes a permit application or a registration form, or a corrected or supplemented application/registration. This provision does not limit the applicability of, nor does it sanction noncompliance with the requirements of Section 2.1 of this regulation.

1.5 Any approval granted by the Department pursuant to this Regulation, and any exemption from the requirements of this Regulation provided for in Section 2.2 shall not relieve an owner or operator of the responsibility of complying with applicable local, State, and Federal laws and regulations.

06/01/97

Section 2 - Applicability

2.1 Except as exempted in Section 2.2, no person shall initiate construction, install, alter or initiate operation of any equipment or facility or air contaminant control device which will emit or prevent the emission of an air contaminant prior to receiving approval of his application from the Department or, if eligible, prior to submitting to the Department a completed registration form.

a. For equipment that meets all applicable emission rate(s) and/or standard(s) specified in Section 11.8(a) and (b) without an air contaminant control device, and that meets the following conditions, the person shall submit to the Department a registration form pursuant to Section 9 of this regulation.

i. For equipment without an air contaminant control device, the equipment has actual emissions to the atmosphere of any air contaminant(s), in the aggregate, during any day that are equal to or greater than 0.2 pound per day and, during each and every day, that are less than ten (10) pounds per day; and

ii. For equipment with an air contaminant control device, the equipment has actual emissions to the inlet of the air contaminant control device of any air contaminant(s), in the aggregate, during any day that are equal to or greater than 0.2 pound per day and, during each and every day, that are less than ten (10) pounds per day; and

iii. Regulation No. 25 does not apply.

b. For equipment, a facility or an air contaminant control device that is not subject to Section 2.1(a) and that is subject to a source category permit, the person shall submit to the Department an application for a source category permit pursuant to Section 10 of this regulation. A list of established source category permits is available from the Department.

c. For equipment, a facility or an air contaminant control device that is not subject to Section 2.1(a) or 2.1(b), the person shall submit to the Department an application for a permit pursuant to Section 11 of this regulation.

d. Any person who operates equipment, a facility or an air contaminant control device in accordance with a valid permit issued pursuant to Section 2.1(c) of this regulation, and who later becomes subject to a source category permit:

i. May, at any time, submit to the Department an application for a source category permit pursuant to Section 10 of this regulation; and

ii. Shall, within sixty (60) calendar days of receipt of written request from the Department, submit to the Department an application for a source category permit pursuant to Section 10 of this regulation.

2.2 Provided that Regulation No. 25 does not apply, a permit for installation, alteration, or operation pursuant to this regulation shall not be required for the following equipment or air contaminant control device. Note however that other State and Federal requirements may apply.

a. Equipment without an air contaminant control device that has actual emissions to the atmosphere of any air contaminant(s), in the aggregate, during each and every day that are less than 0.2 pound per day, provided that:

i. The actual emissions are quantified and documented; and

ii. Records are maintained at the facility and are made available to the Department upon request which document that the equipment qualifies for this exemption.

b. Equipment with an air contaminant control device that has actual emissions to the inlet of the air contaminant control device of any air contaminant(s), in the aggregate, during each and every day that are less than 0.2 pound per day, provided that:

i. The actual emissions are quantified and documented; and

ii. Records are maintained at the facility and are made available to the Department upon request which document that the equipment qualifies for this exemption.

c. The equipment listed in Appendix “A” of this regulation.

d. For operation, any equipment or air contaminant control device that is specifically identified in an operation permit issued pursuant to Regulation No. 30.

e. Equipment that is registered pursuant to Section 9 of this regulation.

2.3 Any person who operates fuel burning equipment which uses only natural gas, LP gas, or other desulfurized fuel gas and has a rated heat input of less than 100 million BTUs per hour, or any other equipment, that was exempted from the requirement to have a permit by Regulation No. 2, Section 3.1 (as in effect immediately preceding the effective date of this regulation), or who operates a piece of equipment, a facility, or an air contaminant control device in accordance with a valid permit or letter of exemption that was issued by the Department prior to May 1, 1997, and who, with regard to that specific equipment, facility, or air contaminant control device, is now subject to Section 2.1 of this regulation:

a. May, at any time, submit to the Department a registration form or a permit application pursuant to Section 2.1; and

b. Shall, within sixty (60) calendar days of receipt of a written request from the Department, submit to the Department a registration form or a permit application pursuant to Section 2.1; and

c. Shall not initiate construction, installation, or alteration of the equipment, facility or air contaminant control device prior to complying with Section 2.1 of this regulation (i.e., prior to receiving approval of his application from the Department or, if eligible, prior to submitting to the Department a completed registration form).

2.4 Any person may petition the Department to establish a source category permit. The petition and, if approved, the establishment of the source category permit shall be pursuant to the procedures in Regulation No. 30 of the State of Delaware Regulations Governing the Control of Air Pollution.

06/01/97

Section 3 - Application/Registration Prepared by Interested Party

3.1 Any application/registration form submitted to the Department, or any request for the removal of any permit or registration, shall be made by the owner or lessee of the equipment, facility, or air contaminant control device or by his agent. If the applicant/registrant is a partnership or group other than a corporation, the application/registration shall be made by one individual who is a member of the group. If the applicant/registrant is a corporation, the application/registration shall be made by an appropriate representative of the corporation. The application/registration form shall be filed with the Air Quality Management Section of the Division of Air and Waste Management.

3.2 Each application form shall be signed by the applicant and certified by a professional engineer as to the accuracy of the technical information concerning the equipment, apparatus or design features contained in the application, plus plans and other papers submitted. Any applicant who fails to submit any relevant facts or who submitted incorrect information to the Department shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary facts or correct information. The signature of the applicant shall constitute an agreement that the applicant will assume responsibility for the installation, alteration or use of the equipment or apparatus concerned in accordance with the requirements of this Regulation.

3.3 Each registration form shall be signed and certified by the registrant as to the accuracy of the technical information concerning the equipment, apparatus or design features contained in the registration. Any registrant who fails to submit any relevant facts or who submitted incorrect information to the Department shall, upon becoming aware of such failure or incorrect submittal, promptly submit such supplementary facts or correct information. The signature of the registrant shall constitute an agreement that the registrant will assume responsibility for the installation, alteration or use of the equipment or apparatus concerned in accordance with the requirements of this Regulation.

06/01/97

Section 4 - Cancellation of Construction Permits

4.1 The Department may cancel a construction permit if the installation or alteration is not begun or if the work involved in installation or alteration is not completed within the time limits specified in the permit.

06/01/97

Section 5 - Action on Applications

5.1 If an application is disapproved, the Department shall set forth its objections in the notice of disapproval.

5.2 Upon granting written approval for operation, the Department shall give notice of such approval to any person who has submitted a written request for such notice.

06/01/97

Section 6 - Denial, Suspension or Revocation of Operating Permits

6.1 In the event the Department denies a request for approval of a permit to operate any equipment, facility, or device for which an application was made, the applicant shall not commence operation until such time that approval has been obtained from the Department or a permit to operate has been issued by the Department.

6.2 The Department may suspend or revoke an operating permit for violation of any permit condition or violation of this or any other applicable rule or regulation of the Department or any law administered by the Department and may take such other actions as it deems necessary. Permit term(s) and condition(s) which were not identified under Section 11.2(i) and which were not subject to public participation under Section 12.3, and/or which do not otherwise conform to the requirements of this regulation, may be deemed not federally enforceable by the Administrator of the EPA.

6.3 Suspension or revocation of an operating permit shall become final immediately upon service of notice on the holder of the permit, unless otherwise stated in the notice of suspension or revocation.

06/01/97

Section 7 - Transfer of Permit/Registration Prohibited

7.1 No person shall transfer a permit from one location to another, or from one piece of equipment to another. No person shall transfer a permit from one person to another person unless thirty (30) days written notice is given to the Department, indicating the transfer is agreeable to both persons, and approval of such transfer is obtained in writing from the Department.

7.2 No person shall transfer a registration from one location to another, or from one piece of equipment to another. No person shall transfer a registration from one person to another person unless prior written notice is given to the Department, indicating the transfer is agreeable to both persons.

06/01/97

Section 8 - Availability of Permit/Registration

8.1 Any permit and any registration form shall be available on the premises where the construction, alteration, installation, or operation activity takes place.

06/01/97

Section 9 - Registration Submittal

9.1 Any person identified in Section 2.1(a) shall register the piece of equipment with the Department on forms furnished by the Department.

9.2 A person shall register with the Department by submitting to the Department a completed registration form that is certified by the person identified in Section 3.1. Registration forms are available from the Department upon request. The registration shall consist of at least the following:

a. A description of the equipment covered by the registration; and

b. A description of the nature and quantification of the amount of the emission from the equipment; and

c. A demonstration that the equipment meets the emission rate(s) and/or standard(s) specified in Section 11.8(a) and (b) of this regulation without an air contaminant control device.

9.3 Immediately after submitting to the Department the information specified in Section 9.2 of this regulation the registrant may initiate construction, install, alter or initiate operation of the equipment.

a. The registrant shall maintain records at the facility which document that the equipment meets the requirements of Section 2.1(a), and shall make such records available to the Department upon request.

b. If at any time the registered equipment does not meet the requirements of Section 2.1(a), operation of said equipment shall be immediately discontinued until all necessary permits have been secured.

c. If at any time the Department determines that the registered equipment does not meet the requirements of Section 2.1(a), a violation of this regulation may have occurred and enforcement action may ensue.

9.4 The submittal of a registration form does not relieve the registrant from the requirement to comply with all State and Federal requirements. Such requirements include, but are not limited to, monitoring, record keeping and reporting requirements, any requirement to consider actual emissions and/or the potential to emit of all equipment when determining the applicability of and/or compliance with certain State and Federal requirements, and any requirement to revise a Regulation No. 30 permit if required to do so by that regulation.

9.5 A person may, in lieu of submitting to the Department a registration form, elect to:

a. Apply for a permit pursuant to Section 2.1(b) or 2.1(c) of this regulation, as applicable.

b. Submit to the Department all of the information required by Section 9.2(a) and (b). In such a case the registrant shall not commence construction/operation until written approval is obtained from the Department.

06/01/97

Section 10 - Source Category Permit Application

10.1 Any person identified in Section 2.1(b) shall submit to the Department an application requesting a source category permit on forms furnished by the Department.

10.2 The application requesting a source category permit shall include all of the following:

a. All of the information called for by the source category application form. Source category application forms are available from the Department upon request.

b. Certification by the person identified in Section 3.1 that the source will comply with all of the terms and conditions of the source category permit.

c. For facilities subject to Regulation No. 30, the person identified in Section 3.1 of this regulation shall be a responsible official as defined in Regulation No. 30, and the application shall contain the following language from the responsible official: “I certify, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.”

10.3 For facilities not subject to Regulation No. 30, the Department shall grant approval by issuing to the applicant a source category permit.

10.4 For facilities subject to Regulation No. 30, the Department shall grant approval by incorporating the source category permit into the Regulation No. 30 permit by reference, and such incorporation shall be via the administrative permit amendment process specified in Regulation No. 30.

10.5 A source category permit may be valid for an indefinite period, except as provided for in Regulation No. 30 for sources subject to that regulation.

06/01/97

Section 11 - Permit Application

11.1 Any person identified in Section 2.1(c) shall submit to the Department an application for a permit on forms furnished by the Department. Permit application forms are available from the Department upon request.

11.2 The application shall consist of a description of at least the following:

a. The equipment or apparatus covered by the application; and

b. Any equipment connected or attached to, or servicing or served by the unit of equipment or apparatus covered by the application; and

c. The plot plan, including the distance and height of building within a reasonable distance from the place where the equipment is or will be installed, if necessarily required by the Department; and

d. The proposed means for the prevention or control of the emissions or contaminant;

e. The chemical composition and amount of any trade waste to be produced as a result of the construction, installation, or alteration of any equipment or apparatus covered by this application;

f. Any additional information, evidence or documentation required by the Department to show what the proposed equipment or apparatus will do.

g. Methods and expected frequency of occurrence of the start-up and shutdown of the equipment, including projected effects of emissions to the atmosphere and on ambient air quality.

h. The nature and amount of emission to be emitted by equipment, the facility, or an air contaminant control device or emitted by associated mobile sources.

i. If the applicant desires any of the term(s) or condition(s) of the permit to be federally enforceable, the applicant shall state that fact in the application. The ensuing permit shall clearly indicate the specific term(s) and condition(s) that are federally enforceable.

j. If the applicant desires any of the term(s) or condition(s) of a construction permit to transfer to a Regulation No. 30 permit via the administrative permit amendment process specified in Regulation No. 30 the following additional requirements apply:

i. The person identified in Section 3.1 of this regulation shall be a responsible official as defined in Regulation No. 30, and the application shall contain the following language from the responsible official: “I certify, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.”

ii. The application shall include the following additional information:

A. The citation and description of all applicable requirements that will apply to the equipment, facility, or air contaminant control device and that will become applicable to any covered source as a result of the construction, installation, alteration, or operation; and a description of, or reference to, any applicable test method for determining compliance with each applicable requirement. The terms “applicable requirement” and “covered source” retain the meanings accorded to them in Regulation No. 30.

B. Certification by the responsible official that the source will meet all applicable requirements on a timely basis, and, if a more detailed schedule is expressly required by any applicable requirement, that applicable requirement in accordance with that more detailed schedule.

C. If desired, information necessary to define alternative operating scenarios under Regulation No. 30, Section 6(a)(10), or to define permit terms and conditions to implement emission averaging or operational flexibility under Regulation No. 30, Section 6(a)(11) and 6(h).

D. If desired, a request that the Department, upon taking final action under Section 11.5(b) or 11.5(c) of this regulation, allow coverage under the permit shield as described in Regulation No. 30, Section 6(f).

iii. The applicant shall provide additional information necessary to address any requirements that become applicable to the equipment, facility, or air contaminant control device after the date it filed an application under this section but prior to the date advertisement is made pursuant to Section 12.4(b) of this regulation. This requirement is in addition to the requirement of Section 2.1 of this regulation in situations where construction, installation, or alteration is necessary to comply with the new applicable requirement.

iv. The ensuing construction permit shall clearly indicate the specific term(s) or condition(s) to transfer to the Regulation No. 30 permit, and each such term or condition shall specify the origin and the authority for that term or condition, and shall identify any difference in form as compared to the applicable requirement upon which the term or condition is based.

11.3 In situations in which construction, installation, or alteration is proposed, and operation of the equipment, facility, or air contaminant control device is to follow, such operation shall not commence until written approval is obtained by the applicant from the Department in accordance with Section 11.4 and 11.5, as applicable. The Department may condition approval to operate on a demonstration by the applicant of satisfactory performance of the equipment, facility, or air contaminant control device. In the event the applicant fails to demonstrate satisfactory performance, the Department may require the applicant to cease emissions from the source.

11.4 Persons not requesting review under Section 11.2(j) shall, upon completion of the construction, installation or alteration, request that the Department grant approval to operate.

a. An application does not need to be submitted to the Department. Note however that an application may be required under Regulation No. 30 for persons subject to that regulation.

b. Upon satisfactory demonstration that the equipment, facility or air contaminant control device complies with all of the terms and conditions of the construction permit, the Department shall grant approval to operate by issuing an operation permit.

11.5 Persons requesting review under Section 11.2(j) shall, upon completion of the construction, installation or alteration, request that the Department transfer the terms and conditions of the construction permit into the Regulation No. 30 operating permit.

a. The request shall contain the following information, and shall contain the following language from the responsible official: “I certify, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.”

i. A description of the compliance status, a compliance schedule, and a certification of compliance for the equipment, facility, or air contaminant control device with respect to all applicable requirements, in accordance with Regulation No. 30, Section 5(d)(8) and (9); and

ii. A statement of the methods used to determine compliance, including a description of monitoring, record keeping, and reporting requirements and test methods.

b. Upon satisfactory demonstration that the equipment, facility or air contaminant control device complies with all applicable requirements and all of the terms and conditions of the construction permit, and not prior to the expiration of the EPA review period provided for in Section 12.5, the Department shall transfer the specified terms and conditions to the Regulation No. 30 permit via the administrative permit amendment process specified in Regulation No. 30.

c. If the Department determines that the equipment, facility, or air contaminant control device does not comply with any applicable requirement the Department may take enforcement action, and shall do one of the following:

i. Provide an opportunity for the applicant to resolve the noncompliance; then, upon resolution, transfer the specified terms and conditions of the construction permit to the Regulation No. 30 permit via the administrative permit amendment process specified in Regulation No. 30; or

ii. Transfer the specified terms and conditions of the construction permit, and an enforceable compliance schedule which satisfies the requirements of Regulation No. 30, Section 5(d)(8)(iii), to the Regulation No. 30 permit by reopening the permit for cause pursuant to the procedures in Regulation No. 30; or

iii. Deny the request for approval to operate.

11.6 No permit shall be issued by the Department unless the applicant shows to the satisfaction of the Department that the equipment, facility, or air contaminant control device is designed to operate or is operating without causing a violation of the State Implementation Plan, or any rule or regulation of the Department, and without interfering with the attainment or maintenance of National and State ambient air quality standards, and without endangering the health, safety, and welfare of the people of the State of Delaware. The Department may, from time to time, issue or accept criteria for the guidance of applicants indicating the technical specifications which it deems will comply with the performance standards referenced herein.

11.7 Before a permit is issued, the Department may require the applicant to conduct such tests as are necessary in the opinion of the Department to determine the kind and/or amount of the contaminants emitted from the equipment or whether the equipment or fuel or the operation of the equipment will be in violation of any of the provisions of any rule or regulation of the Department. Such tests shall be made at the expense of the applicant and shall be conducted in a manner approved by the Department.

11.8 The following emission rates and/or standards for each air contaminant emitted from any equipment, facility or air contaminant control device shall be specified in each permit issued pursuant to this regulation:

a. The rate and/or standard established and/or relied upon in the State Implementation Plan (SIP) to include the State of Delaware Regulations Governing the Control of Air Pollution and regulations promulgated pursuant to Section 111 and Section 112 of the Clean Air Act (CAA); and

b. The rate that was shown under Section 11.6 as not interfering with the attainment and maintenance of any National and State ambient air quality standard, and not endangering the health, safety, and welfare of the people of the State of Delaware; or

c. The rate requested by the applicant. In no case shall this rate be greater than the potential to emit of the equipment, facility, or air contaminant control device; and in no case shall this rate be less stringent than the rate specified in Section 11.8(a) and (b) of this regulation.

11.9 Each emission rate and standard shall be enforceable as a practical matter. Enforceable as a practical matter means that each emission rate and standard:

a. Is stated in the permit as a technically specific and accurate limitation.

b. Is specifically associated with a particular piece(s) of equipment or air contaminant control device(s).

c. Has associated conditions which, in total, establish a method to determine compliance. Such associated conditions shall include appropriate testing, monitoring, record keeping, and reporting requirements.

d. Has a recurring, predictable time period under which compliance with the limitation will be demonstrated. Such time period shall be that specified in the underlying State regulation or federal rule or, in the absence of such specification and upon approval by the Department, shall be hourly, daily, monthly, or some other time period which provides for the demonstration of compliance with the limitation no less frequently than monthly.

11.10 A construction permit or any renewal thereof shall be valid for a period not to exceed three years from the date of issuance, unless sooner revoked by order of the Department, and may be renewed upon application to and approval by the Department.

11.11 An operating permit may be valid for an indefinite period, unless the equipment or operation for which a permit is written has controlled emissions of 100 tons or more per year of any air contaminant, in which case the permit shall be valid for not more than a 5-year period and shall be evaluated prior to re-issuance to determine if permitted emission limits are appropriate.

11.12 The provisions of Section 2.1 and 11.3 shall not apply to the operation of equipment or processes for the purpose of initially demonstrating satisfactory performance to the Department following construction, installation, modification or alteration of the equipment or processes. The applicant shall notify the Department sufficiently in advance of the demonstration and shall obtain the Department's prior concurrence of the operating factors, time period and other pertinent details relating to the demonstration.

11.13 Upon receipt of an application for the issuance of an operating permit the Department, in its discretion, may issue a temporary operating permit valid for a period not to exceed ninety (90) days. A temporary operating permit issued pursuant to this Section shall not be extended more than once for an additional 90-day period.

06/01/97

Section 12 - Public Participation

12.1 Information obtained through the provisions of this Regulation shall be made available for public inspection at any Department office except where such information is of confidential nature as defined in 7 Del.C. Chapter 60, Section 6014. The Department shall provide for public participation and comment in accordance with Section 12.2 through 12.6, as applicable.

12.2 Upon receipt of a source category permit application or a permit application, in proper form, the Department shall provide for public participation and comment by:

a. Making available in at least one location in the State of Delaware a public file containing a copy of all materials that the applicant has submitted (other than those granted confidential treatment).

b. Advertising in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State: 1) the fact that the application has been received, the identity of the affected facility, and the city or town in which the facility is located, 2) a brief description of the nature of the application, to include the activity or activities involved in the permit action and the emissions or the change in emission involved, and 3) the name, address and telephone number of a Department representative with responsibility for the permitting action, the place at which a copy of the public file may be inspected, and a statement of procedures to request a hearing.

c. Sending notice of the information detailed in Section 12.2(b) by mail to any person who has requested such notification from the Department by providing to the Department their name and mailing address.

d. Holding, if the Department receives a meritorious request for a hearing within fifteen (15) calendar days of the date of the advertisement described in Section 12.2(b), or if the Department deems it to be in the best interest of the State to do so, a public hearing on an application for interested persons to appear and submit written or oral comments on the air quality impact of the proposed action.

i. A public hearing request shall be deemed meritorious if it exhibits a familiarity with the application and a reasoned statement of the permit's probable impact.

ii. Not less than twenty (20) calendar days before the time of said hearing, notification that a public hearing will be held and the time and place of that hearing shall be:

A. Served upon the applicant as summonses are served or by registered or certified mail; and

B. Published in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State.

e. Considering all comments submitted by the applicant and the public in reaching its final determination.

12.3 For each permit application requesting to make the terms and conditions of a permit federally enforceable, the Department shall provide for public participation and comment by:

a. Making available in at least one location in the State of Delaware a public file containing a copy of all materials that the applicant has submitted (other than those granted confidential treatment), a copy of the draft permit, and a copy or summary of other materials, if any, considered in making the preliminary determination.

b. Advertising in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State: 1) the fact that the application has been received, the identity of the affected facility, and the city or town in which the facility is located, 2) a brief description of the nature of the application, to include the activity or activities involved in the permit action and the emissions or the change in emission involved, and 3) the name, address and telephone number of a Department representative with responsibility for the permitting action, the place at which a copy of the public file may be inspected, and a statement of procedures to request a hearing.

c. On or before the date of the advertisement described in Section 12.3(b):

i. Sending notice of the information detailed in Section 12.3(b) by mail to the Administrator of the EPA, through the Region III office, and to any person who has requested such notification from the Department by providing to the Department their name and mailing address.

ii. Providing the Administrator of the EPA, through the Region III office, a copy of the draft permit.

d. Holding, if the Department receives a meritorious request for a hearing within thirty (30) calendar days of the date of the advertisement described in Section 12.3(b), or if the Department deems it to be in the best interest of the State to do so, a public hearing on an application or the draft permit for interested persons to appear and submit written or oral comments on the air quality impact of the proposed action or on the specific terms and conditions of the draft permit.

i. A public hearing request shall be deemed meritorious if it exhibits a familiarity with the application and a reasoned statement of the permit's probable impact.

ii. Not less than thirty (30) calendar days before the time of said hearing, notification that a public hearing will be held and the time and place of that hearing shall be:

A. Served upon the applicant as summonses are served or by registered or certified mail; and

B. Published in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State.

e. Affording the applicant an opportunity to submit, within fifteen (15) days following the close of the public comment period or the public hearing, whichever is later, a response to any comments made.

f. Considering all comments submitted by the applicant, the public, and the Administrator of the EPA in reaching its final determination.

g. Providing to the Administrator of the EPA, through the Region III office, a copy of the permit.

12.4 For each permit application requesting to allow the terms and conditions of a construction permit to transfer to a Regulation No. 30 permit via the administrative permit amendment process specified in Regulation No. 30, the Department shall provide for public participation and comment by:

a. Making available in at least one location in the State of Delaware a public file containing a copy of all materials that the applicant has submitted (other than those granted confidential treatment), a copy of the draft permit, and a copy or summary of other materials, if any, considered in making the preliminary determination.

b. Advertising in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State: 1) the fact that the application has been received, the identity of the affected facility, and the city or town in which the facility is located, 2) a brief description of the nature of the application, to include the activity or activities involved in the permit action and the emissions or the change in emission involved, and 3) the name, address and telephone number of a Department representative with responsibility for the permitting action, the place at which a copy of the public file may be inspected, and a statement of procedures to request a hearing.

c. On or before the date of the advertisement described in Section 12.4(b):

i. Sending notice of the information detailed in Section 12.4(b) by mail to any person who has requested such notification from the Department by providing to the Department their name and mailing address, and to the representative of any affected states designated by those states to receive such notices. The term “affected states” retains the meaning accorded to it in Regulation No. 30.

ii. Providing the Administrator of the EPA, through the Region III office, affected states, any person who requests it, and the applicant a statement that sets forth the legal and factual basis for the draft permit conditions (including references to the applicable statutory or regulatory provisions).

iii. Providing the Administrator of the EPA, through the Region III office, a copy of the permit application unless the Administrator waives the requirement.

d. Holding, if the Department receives a meritorious request for a hearing within thirty (30) calendar days of the date of the advertisement described in Section 12.4(b), or if the Department deems it to be in the best interest of the State to do so, a public hearing on an application or the draft permit for interested persons to appear and submit written or oral comments on the air quality impact of the proposed action or on the specific terms and conditions of the draft permit.

i. A public hearing request shall be deemed meritorious if it exhibits a familiarity with the application and a reasoned statement of the permit's probable impact.

ii. Not less than thirty (30) calendar days before the time of said hearing, notification that a public hearing will be held and the time and place of that hearing shall be:

A. Served upon the applicant as summonses are served or by registered or certified mail; and

B. Published in a newspaper of general circulation in the county in which the activity is proposed and in a daily newspaper of general circulation throughout the State.

e. Affording the applicant an opportunity to submit, within fifteen (15) days following the close of the public comment period or the public hearing, whichever is later, a response to any comments made.

f. Considering all comments submitted by the applicant, the public, and any affected state in reaching its final determination. The Department shall maintain a list of all commenters and a summary of the issues raised and shall make that information available in the public file and supply it to EPA upon request.

g. After meeting the requirements of 12.4(a) through 12.4(f), providing the Administrator of the EPA, through the Region III office, a copy of the proposed permit [i.e., the version of the permit that represents the Departments final determination under Section 12.4(f)], all necessary supporting information, and providing a notice to the Administrator and to any affected state of any refusal by the Department to accept all recommendations for the proposed permit that the affected state submitted during the public review period. The notice shall include the Department's reasons for not accepting any such recommendation. The Department is not required to accept recommendations that are not based on applicable requirements. The term “applicable requirement” retains the meaning accorded to it in Regulation No. 30.

h. On or before the date that the Department provides the proposed permit to EPA for review under Section 12.4(g), issuing a written response to all comments submitted by affected states and all significant comments submitted by the applicant and the public.

12.5 The Department shall not issue the permit if the Administrator objects to its issuance in writing within forty-five (45) days of receipt of all of the information provided to the Administrator pursuant to Section 12.4(g). Any EPA objection under this paragraph shall include a statement of the Administrator's reasons for objection and a description of the terms and conditions that must be revised to respond to the objection. The Administrator will provide the applicant a copy of the objection. The Department may thereafter issue only a revised permit that satisfies EPA's objection.

12.6 If the Administrator does not object in writing under Section 12.5, any person may petition the Administrator within sixty (60) days after the expiration of the Administrator's 45-day review period to make such objection. Any such petition shall be based only on objections to the permit raised with reasonable specificity during the public comment period provided for in Section 12.4, unless the petitioner demonstrates that it was impracticable to raise such objections within such period, or unless the grounds for such objection arose after such period. If the Administrator objects to the permit as a result of a petition filed under this paragraph, the Department shall not amend the Regulation No. 30 permit until EPA's objection has been resolved, except that a petition for review does not stay the effectiveness of the construction permit and/or the amended Regulation No. 30 permit or its requirements if the construction permit or the amended Regulation No. 30 permit was issued after the end of the 45-day review period and prior to an EPA objection. If the Department has issued an amended the Regulation No. 30 permit prior to receipt of an EPA objection under this paragraph, the Administrator will modify, terminate, or revoke such permit, and shall do so consistent with the time limits established in 40 CFR 70.7(g)(4) or (5)(i) and (ii), except in emergencies, and the Department may thereafter issue only a revised permit that satisfies EPA’s objection. In any case, the source will not be in violation of the requirement to have submitted a timely and complete application under Regulation No. 30.

06/01/97

Section 13 - Department Records

13.1 The Department will keep for five (5) years such records and submit to the Administrator of the EPA such information as the Administrator may reasonably require to ascertain whether the optional procedures to establish and transfer the terms and conditions of a construction permit issued pursuant to this regulation into a Regulation No. 30 operating permit via the administrative permit amendment process specified in Regulation No. 30 comply with the requirements of the Federal Clean Air Act and 40 CFR Part 70.

Appendix A

(For the applicability of Appendix A see Section 2.2 of the regulation)

a. Air contaminant detector, air contaminant recorder, combustion controller or combustion shut-off.

b. Except as provided for in Regulation No. 22, Restriction on Quality of Fuel in Fuel Burning Equipment, external combustion fuel burning equipment which:

i. Uses any fuel and has a rated heat input of less than 10 million British-Thermal Units (BTUs) per hour.

ii. Uses only natural gas, LP gas, or other desulfurized fuel gas and has a rated heat input of less than 15 million British-Thermal Units (BTUs) per hour.

c. Air conditioning or comfort ventilating systems.

d. Vacuum cleaning systems used exclusively for office applications or residential housekeeping.

e. Ventilating or exhaust systems for print storage room cabinets.

f. Exhaust systems for controlling steam and heat.

g. Any equipment at a facility used exclusively for chemical or physical analysis or determination of product quality and commercial acceptance, provided the operation of the equipment is not an integral part of the production process and the total actual emissions from all such equipment at the facility do not exceed 450 pounds in any calendar month.

h. Internal combustion engines in vehicles used for transport of passengers or freight.

i. Maintenance, repair, or replacement in kind of equipment for which a permit to operate has been issued.

j. Equipment which emits only nitrogen, oxygen, carbon dioxide, and/or water vapor.

k. Ventilating or exhaust systems used in eating establishments where food is prepared for the purpose of consumption.

l. Equipment used to liquefy or separate oxygen, nitrogen or the rare gases from the air.

m. Fireworks display.

n. Smudge pots for orchards or small outdoor heating devices to prevent freezing of plants.

o. Outdoor painting and sand blasting equipment.

p. Lawnmowers, tractors, farm equipment and construction equipment.

q. Gasoline dispensing facilities that never exceed a monthly throughput of 10,000 gallons.

s. Stationary gasoline storage tanks that:

1. Have a capacity less than 550 gallons and that are used exclusively for the fueling of implements of husbandry; or

2. Have a capacity less than 2000 gallons and that were constructed prior to January 1, 1979; or

3. Have a capacity less than 250 gallons and that were constructed after December 31, 1978.

t. Fire schools or fire fighting training.

u. Residential wood burning stoves and wood burning fireplaces.

v. Any stationary storage tank not subject to control by these regulations which contains any liquid having a true vapor pressure less than 0.5 psia at 70oF or is less than 5000 gallons capacity.

w. Buildings, cabinets, and facilities used for storage of chemicals in closed containers.

x. Sewage treatment facilities.

y. Water treatment units.

z. Quiescent wastewater treatment operations.

aa. Non-contact water cooling towers (water that has not been in direct contact with process fluids).

bb. Laundry dryers, extractors, or tumblers used for fabrics cleaned with a water solution of bleach or detergents.

cc. Equipment used for hydraulic or hydrostatic testing.

dd. Blueprint copiers and photographic processes.

ee. Kilns used for firing ceramic ware that are heated exclusively by natural gas, electricity, and/or liquid petroleum gas, and the BTU input is less than 15 million BTUs per hour.

ff. Inorganic acid storage tanks equipped with an emission control device.

gg. Any internal combustion engine associated with a stationary electrical generator that: 1)has a standby power rating of 450 kilowatts or less that is used only during times of emergency; 2)is located at any residence; or 3)is located at any commercial poultry producing premise, as these terms are defined in Regulation No. 1144.

hh. Any internal combustion fuel burning equipment, which is not associated with a stationary electrical generator, and has an engine power rating of 450 hp or less.

9 DE Reg. 1084 (01/01/06) (Final)