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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsJanuary 2019

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7 DE Admin. Code 1102
RE: Approving Final Regulations to Amend 7 DE Admin. Code 1101, Section 2.0, Definitions and Administrative Principles; 7 DE Admin. Code 1102, Appendix A, Section 15.0, Outdoor Painting and Sand Blasting Equipment; and a proposed new Source Category Permit, Removal of Lead-Containing Coatings from Outdoor Water Tanks by Dry Abrasive Blasting
Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control (“Department” or “DNREC”), pursuant to 7 Del.C. §§6006 and 6010, and all other relevant statutory authority, the following findings of fact based on the record, reasons and conclusions are entered as an Order of the Secretary in the above-referenced regulatory proceeding.
This Order relates to proposed regulation amendments (“Amendments”) to 7 DE Admin. Code 1101, Section 2.0, Definitions and Administrative Principles; 7 DE Admin. Code 1102, Appendix A, Section 15.0, Outdoor Painting and Sand Blasting Equipment; and a proposed new Source Category Permit, Removal of Lead-Containing Coatings from Outdoor Water Tanks by Dry Abrasive Blasting (“Permit”).
The Amendments proposed for Appendix A, Section 15.0 of 7 DE Admin. Code 1102 will qualify that outdoor dry abrasive blasting of water tanks with lead-containing coatings are no longer exempt from obtaining a permit from the Department. In further support of these proposed Amendments and Permit, the Department is adding three definitions to Section 2.0 of 7 DE Admin. Code 1102 for “dry abrasive blasting,” “lead-containing coating,” and “water tank.”
As set forth in 7 DE Admin. Code 1102, Permits, Appendix A contains a list of equipment for which an air permit for installation, alteration, or operation is not required. Section 15.0 of that Appendix relates to outdoor painting and sand blasting equipment. Water tanks, such as those containing potable drinking water, are often coated with lead-containing coatings. Removal of these coatings must be accomplished under conditions that protect people and nearby properties from the known harmful impacts of lead. Although dry abrasive blasting cleans the tank surface well in preparation for subsequent successful recoating, it is a difficult process to control, as it tends to disperse blasting residue with lead-containing particles over a broad area. Using a containment system to contain blasting residue and allow subsequent collection and safe disposal, will provide the necessary protection of people and property.
The proposed new Permit is not a regulation, however, for transparency purposes, the Department published the same in the General Notices Section of the June 1, 2018 edition of the State of Delaware Register of Regulations, along with the aforementioned proposed Amendments. Additionally, the proposed new Permit language incorporates tank containment practices generally accepted by tank owners, and includes specific requirements as set forth in the Society of Protective Coatings (“SSPC”), Guide No. 6, “Guide for Containing Surface Preparation Debris Generated During Paint Removal Operations,” a copyrighted document.
The Department has the statutory basis and legal authority to act with regard to promulgation of the above proposed Amendments and the proposed new Permit, pursuant to 7 Del.C. Ch. 60 and 7 DE Admin. Code 1130, Title V State Operating Permit Program. As noted previously, the Department published its initial proposed regulatory Amendments and Permit in the June 1, 2018 Delaware Register of Regulations. Thereafter, the public hearing regarding this matter was held on July 12, 2018. Members of the public attended the aforementioned public hearing, with comment being received by the Department at that time. Pursuant to Delaware law, the record remained open for fifteen (15) additional days subsequent to the date of the public hearing for receipt of public comment. The hearing record formally closed for comment in this matter at the close of business on July 27, 2018, with the Department having received comment from the public prior to, during, and subsequent to the hearing on July 12, 2018.
With regard to the comments received by the Department in this matter, it should be noted that all comments concerning the proposed amendments to both 7 DE Admin. Code 1101 and 7 DE Admin. Code 1102 were supportive in nature. Other comments received from the public concerned either the non-regulatory aspects of the Department’s proposed actions, or referred to activities not germane to the subject matter of the public hearing held on July 12, 2018. Nevertheless, the Department’s Division of Air Quality addressed those comments in its Technical Response Memorandum (“TRM”) as well.
One commenter pointed out a non-substantive clerical error contained in subsection 4.1.9 of the Permit. The Department has now corrected this error, and the revised version of this Permit will be published, along with the finalized aforementioned Amendments, in the next available edition of the Register of Regulations. It should be noted that no changes were made to the Department’s proposed Amendments during the post-hearing phase of this promulgation, and thus no additional public vetting or re-publication of the same is required in this matter.
1. The Department has the statutory basis and legal authority to act with regard to the proposed amendments to 7 DE Admin. Code 1101, Section 2.0, Definitions and Administrative Principles; 7 DE Admin. Code 1102, Appendix A, Section 15.0, Outdoor Painting and Sand Blasting Equipment; and the proposed new Source Category Permit, Removal of Lead-Containing Coatings from Outdoor Water Tanks by Dry Abrasive Blasting, pursuant to 7 Del.C. Ch. 60;
2. The Department has jurisdiction under its statutory authority, pursuant to 7 Del.C. Ch. 60, to issue an Order adopting these proposed Amendments and proposed new Permit as final;
6. The Department has reviewed the proposed Amendments in the light of the Regulatory Flexibility Act, consistent with 29 Del.C. Ch. 104, and has selected Exemption B1, as this regulation is not substantially likely to impose additional costs or burdens upon individuals and/or small businesses;
7. The Department’s Hearing Officer’s Report, including its established record and the recommended proposed Amendments and proposed new Source Category Permit, as set forth in Appendices A through C thereto, are hereby adopted to provide additional reasons and findings for this Order;
8. The Department’s proposed regulatory Amendments and proposed new Source Category Permit, as initially published in the June 1, 2018 Delaware Register of Regulations, and as set forth in Appendices A through C hereto, are adequately supported, are not arbitrary or capricious, and are consistent with the applicable laws and regulations. Consequently, they should be approved as final regulatory Amendments and a final new Source Category Permit, which shall go into effect ten days after their publication in the next available issue of the Delaware Register of Regulations; and
9. The Department shall submit the proposed Amendments as final regulatory amendments to 7 DE Admin. Code 1101, Section 2.0, Definitions and Administrative Principles, and 7 DE Admin. Code 1102, Appendix A, Section 15.0, Outdoor Painting and Sand Blasting Equipment, as well as the proposed new Source Category Permit, Removal of Lead-Containing Coatings from Outdoor Water Tanks by Dry Abrasive Blasting, to the Delaware Register of Regulations for publication in its next available issue, and provide such other notice as the law and regulation require and the Department determines is appropriate.
1.1 This regulation establishes the procedures that satisfy the requirement of 7 Del.C. Ch. 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 7 DE Admin. Code 1125, 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.
1.3 This regulation establishes procedures that enable a person subject to both this regulation and to 7 DE Admin. Code 1130 to, as an option, transfer the terms and conditions of a construction permit issued pursuant to this regulation into a 7 DE Admin. Code 1130 operating permit via the administrative permit amendment process specified in 7 DE Admin. Code 1130.
2.1.1.3 7 DE Admin. Code 1125 does not apply.
2.2 Provided that 7 DE Admin. Code 1125 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.
2.2.3 The equipment listed in Appendix A 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 3.1 of this regulation (as in effect immediately preceding the then effective date of this regulation of June 1, 1997), 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 June 1, 1997, and who, with regard to that specific equipment, facility, or air contaminant control device, is now subject to 2.1 of this regulation:
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.
10.2.3 For facilities subject to 7 DE Admin. Code 1130, the person identified in 3.1 of this regulation shall be a responsible official as defined in 7 DE Admin. Code 1130, 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.”
10.4 For facilities subject to 7 DE Admin. Code 1130, the Department shall grant approval by incorporating the source category permit into the 7 DE Admin. Code 1130 permit by reference, and such incorporation shall be via the administrative permit amendment process specified in 7 DE Admin. Code 1130.
11.2.10 If the applicant desires any of the term (or terms) or condition (or conditions) of a construction permit to transfer to a 7 DE Admin. Code 1130 permit via the administrative permit amendment process specified in 7 DE Admin. Code 1130 the following additional requirements apply:
11.2.10.1 The person identified in 3.1 of this regulation shall be a responsible official as defined in 7 DE Admin. Code 1130, 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.”
11.2.10.2.3 If desired, information necessary to define alternative operating scenarios under 6.1.10 of 7 DE Admin. Code 1130, or to define permit terms and conditions to implement emission averaging or operational flexibility under 6.1.11 and 6.8 of 7 DE Admin. Code 1130.
11.2.10.4 The ensuing construction permit shall clearly indicate the specific term (or terms) or condition (or conditions) to transfer to the 7 DE Admin. Code 1130 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.
11.5.3.2 Transfer the specified terms and conditions of the construction permit, and an enforceable compliance schedule which satisfies the requirements of 5.4.8.3 of 7 DE Admin. Code 1130, to the 7 DE Admin. Code 1130 permit by reopening the permit for cause pursuant to the procedures in 7 DE Admin. Code 1130; or
11.8.1 The rate or standard established or relied upon in the State Implementation Plan (SIP) to include the State of Delaware 7 DE Admin. Code 1100 “Regulations Governing the Control of Air Pollution” and regulations promulgated pursuant to Section 111 and Section 112 of the Clean Air Act (CAA); and
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. §6014. The Department shall provide for public participation and comment in accordance with 12.2 through 12.6 of this regulation, as applicable.
12.4 For each permit application requesting to allow the terms and conditions of a construction permit to transfer to a 7 DE Admin. Code 1130 permit via the administrative permit amendment process specified in 7 DE Admin. Code 1130, the Department shall provide for public participation and comment by:
12.6 If the Administrator does not object in writing under 12.5 of this regulation, any person may petition the Administrator within 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 12.4 of this regulation, 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 7 DE Admin. Code 1130 permit until EPA’s objection has been resolved, except that a petition for review does not stay the effectiveness of the construction permit or the amended 7 DE Admin. Code 1130 permit or its requirements if the construction permit or the amended 7 DE Admin. Code 1130 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 7 DE Admin. Code 1130 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 7 DE Admin. Code 1130.
06/11/2006 [(xx/xx/xxxx) 01/11/2019]
2.0 Except as provided for in 7 DE Admin. Code 1122, “Restriction on Quality of Fuel in Fuel Burning Equipment,” external combustion fuel burning equipment which:
15.0 Outdoor painting and sand blasting equipment except for the removal of lead-containing coatings from outdoor water tanks by dry abrasive blasting.
Last Updated: December 31 1969 19:00:00.
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