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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsJuly 2013

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7 DE Admin. Code 1125
RE: Approving Final Regulations to Amend 7 DE Admin. Code 1125, Requirements for Preconstruction Review, Section 1.9 (“Definitions”)
* Please Note: The proposed regulation addressed amendments to Sections 1.9 and 2.0, which was published in the September 2012, issue of the Delaware Register of Regulations (16 DE Reg. 239). The Order only adopted the amendments to Section 1.9. The amendments to Section 2.0 were not finalized. The final regulation is being published here as an Errata. The effective date, as to the amendments to Section 1.9 remains the same.
This Order considers proposed regulations to amend 7 DE Admin. Code 1125, Requirements for Preconstruction Review: Section 1.9 (“Definitions”). The Department’s Division of Air Quality commenced the regulatory development process with Start Action Notice 2012-18. The Department published its initial proposed Regulation Amendments in the September 1, 2012 Delaware Register of Regulations, and held a public hearing on September 27, 2012. It should be noted that the only public comment received by the Department in this matter came from the Delaware Solid Waste Authority at the time of the aforementioned public hearing, and that such comment voiced support for this proposed action.
The proposed amendments to 7 DE Admin. Code 1125 will enable the Department to revise Section 1.9 of Regulation 1125 to include in the definition for “Greenhouse Gases (GHG)” that, prior to July 21, 2014, biogenic carbon dioxide (CO2) emissions be excluded from consideration. This proposed change mirrors the federal rule at 76 FR 43490 (July 20, 2011), temporarily deferring for a period of three years the application of Prevention of Significant Deterioration (PSD) permitting requirements for CO2 emissions from bioenergy and other biogenic stationary sources such as landfills.
I find that the proposed Amendments are well-supported by the record developed by the Department, and I adopt the Report to the extent it is consistent with this Order. The Department’s experts developed the record and drafted the proposed Amendments. I find that the Department’s experts in the Division of Air Quality fully developed the record to support adoption of these Amendments. With the adoption of this Order, Delaware will be enabled to incorporate federal rule language contained in the three-year deferral rule (76 FR 43490 – July 20, 2011) to exempt new source review permitting of facilities emitting biogenic sourced carbon dioxide (CO2).
5.) The recommended Amendments should be adopted as final regulation Amendments because Delaware will be able to (1) revise Section 1.9 of Regulation 1125 to include in the definition for “Greenhouse Gases (GHG)” that, prior to July 21, 2014, biogenic carbon dioxide (CO2) emissions be excluded from consideration; (2) effectively mirror the federal rule at 76 FR 43490 (July 20, 2011), temporarily deferring for a period of three years the application of Prevention of Significant Deterioration (PSD) permitting requirements for CO2 emissions from bioenergy and other biogenic stationary sources such as landfills; and, lastly, because (3) the amendments are well supported by documents in the record;
6.) The Department shall submit this Order approving the final regulation 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.
1125 Requirements for Preconstruction Review
08/11/12 06/11/13
Actual Emissions means the actual rate of emissions of a pollutant from an emission unit, as determined in accordance with the three subparagraphs below.
Allowable Emissions means the emissions rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to enforceable limits, which restrict the operating rate, or hours of operation, or both) and the most stringent of the following:
as set forth in 7 DE Admin. Code 1120 and 1121;
Baseline Area means any intrastate area (and every part thereof) designated as attainment or unclassifiable in which the major source or major modification establishing the minor source baseline date would construct or would have an air quality impact of the pollutant for which the baseline date is established, as follows: equal to or greater than one µg/m3 (annual average). for SO2, NO2, or PM10; or equal to or greater than 0.3 µg/m3 (annual average) for PM2.5.
Baseline Concentration means that ambient concentration level which exists in the baseline area at the time of the applicable minor source baseline date. A baseline concentration is determined for each pollutant for which a minor source baseline date is established and shall include:
Begin Actual Construction means, in general, initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying underground pipework and construction of permanent storage structures. With respect to a change in method of operations, this term refers to those on-site activities other than preparatory activities which mark the initiation of the change.
Best Available Control Technology (BACT) means an emissions limitation (including a visible emission standard) based on the maximum degree of reduction for each pollutant subject to regulation under CAA which would be emitted from any proposed major stationary source or major modification which the Department, on a case-by-case basis, takes into account energy, environmental, and economic impacts and other costs, determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. In no event shall application of best available control technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard under 7 DE Admin. Code 1120 and 1121. If the Department determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination thereof, may be prescribed instead to satisfy the requirement for the application of best available control technology. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent results.
Building, Structure, Facility, or Installation means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control). Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same ”Major Group” (i.e., which have the same first two digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 Supplement (U.S. Government Printing Office stock numbers 4101-0066 and 003-005-00176-0, respectively). For purposes of 2.0 of this regulation for VOC and NOx pollutant-emitting activities, this definition shall apply only to the “Building, Structure or Facility”.
Commence as applied to construction of a major stationary source or major modification means that the owner or operator has all necessary preconstruction approvals or permits and either has:
Complete means, in reference to an application for a permit, that the application contains all of the information necessary for processing the application.
Condensable Particulate Matter means material that is vapor phase at stack conditions, but condenses and/or reacts upon cooling and dilution in the ambient air to form solid or liquid PM immediately after discharge from the stack. Note that all condensable PM is assumed to be in the PM2.5 size fraction.
Construction means any physical change or change in the method of operation (including fabrication, erection, installation, demolition or modification of an emissions unit) which would result in a change in actual emissions.
Direct Particulate Mattermeans particles that enter the atmosphere as a direct emission from a stack or an open source. Direct PM comprises two components: filterable PM and condensable PM. These two PM components have no upper particle size limit.
Direct PM2.5 means combined filterable PM2.5 and condensable PM with an aerodynamic diameter less than or equal to 2.5 micrometers. These solid particles are emitted directly from an air emissions source or activity, or are the gaseous emissions or liquid droplets from an air emissions source or activity that condense to form PM at ambient temperatures. Direct PM2.5 emissions include elemental carbon, directly emitted organic carbon, directly emitted sulfate, directly emitted nitrate, and other inorganic particles (including but not limited to crustal material, metals, and sea salt).
Emissions Unit means any part of a stationary source which emits or would have the potential to emit any pollutant subject to regulation under the CAA.
Enforceable means any standard, requirement, limitation or condition established by an applicable federal or state regulation or specified in a permit issued or order entered thereunder, or contained in a SIP approved by the Administrator of the U.S. Environmental Protection Agency (EPA), and which can be enforced by the Department and the Administrator of the EPA.
Filterable PM means particles that are emitted directly by a source as a solid or liquid at stack or release conditions and captured on the filter of a stack test train.
Fugitive Emissions means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.
Fixed capital costmeans the capital needed to provide all the depreciable components.
“Greenhouse Gases (GHG)” means an air pollutant composed of an aggregate group of six greenhouse gases; carbon dioxide (CO2), nitrous oxide (N2O), methane (CH4), hydrofluorocarbons (HFC), perfluorocarbons (PFC), and sulfur hexafluoride (SF6). For the purposes of this regulation, the term CO2equivalent emissions (CO2e) shall represent an amount of GHG emitted, and shall be computed as follows;
Multiply the mass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant GHG by the gases associated global warming potential as shown in Table 1-1 of this regulation. For the purposes of this computation, prior to July 21, 2014, the mass of the greenhouse gas carbon dioxide shall not include carbon dioxide emissions resulting from the combustion or decomposition of non-fossilized and biodegradable organic material originating from plants, animals, or micro-organisms (including products, residues and waste from agriculture, forestry and related industries as well as the non-fossilized and biodegradable organic fractions of industrial and municipal wastes, including gases and liquids recovered from the decomposition of non-fossilized and biodegradable organic material).
Innovative Control Technology means any system of air pollution control that has not been adequately demonstrated in practice, but would have a substantial likelihood of achieving greater continuous emissions reduction than any control system in current practice or of achieving at least comparable reductions at lower cost in terms of energy economics, or non-air quality environmental impacts.
Lowest Achievable Emission Rate (LAER) means the same as defined in 7 DE Admin. Code 1101, "Definitions and Administrative Principles".
Major Modification
Major Source Baseline Date means in the case of PM10 and SO2, January 6, 1975; in the case of NO2, February 8, 1988; and, in the case of PM2.5, October 20, 2010.
Major Stationary Source - See 2.2 and 3.1 of this regulation.
Minor Source Baseline Date
• Minor Source Baseline date means the earliest date after August 7, 1977 in the case of PM10 and SO2; after February 8, 1988 in the case of NO2; and, after October 20, 2011 in the case of PM2.5, on which the first complete application is submitted by a major stationary source or major modification subject to the requirements of 3.0 of this regulation.
Necessary Preconstruction Approvals or Permits means those permits or approvals required under Delaware air quality control laws and regulations.
Net Emissions Increase
Ozone Transport Region means the region designated by section 184 of the federal Clean Air Act and comprised of the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan Statistical Area that includes the District of Columbia and northern Virginia.
Permanent (Reductions) means that the actual emission reductions submitted to the Department for certification have been incorporated in a permit or a permit condition or, in the case of a shutdown, the permit to operate for the emission unit or units has been voided.
Potential to Emit means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source.
Quantifiable (Reductions) means that the amount, rate and characteristics of emission reductions can be determined by methods that are considered reliable by the Department and the Administrator of the EPA.
Real (Reductions) means reductions in actual emissions released into the atmosphere.
Reconstruction will be presumed to have taken place where the fixed capital cost of the new components exceeds 50% of the fixed capital cost of a comparable entirely new stationary source. Any final decision as to whether reconstruction has occurred shall be made in accordance with the provisions of 40 CFR 60.15(f)(1)-(3). A reconstructed stationary source will be treated as a new stationary source for purposes of this regulation. In determining lowest achievable emission rate (LAER) for a reconstructed stationary source, the provisions of 40 CFR 60.15(f)(4) shall be taken into account in assessing whether a new source performance standard is applicable to such stationary source.
Secondary Emissions means emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of this regulation, secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the stationary source or modification which causes the secondary emissions. Secondary emissions may include, but are not limited to:
PM10 particulate: 15 TPY
PM2.5: 10 TPY of direct PM2.5 emissions; 40 TPY of sulfur dioxide emissions; 40 TPY nitrogen oxide emissions.
Stationary Source means any building, structure, facility or installation which emits or may emit any air pollutant subject to regulation under the CAA.
Subject to Regulationmeans, for any air pollutant, that the pollutant is subject to either a provision in the Clean Air Act, or a nationally-applicable regulation codified by EPA, that requires actual control of the quantity of emissions of that pollutant, and that such a control requirement has taken effect and is operative to control, limit or restrict the quantity of emissions of that pollutant released from the regulated activity. Except that GHG shall not be subject to regulation except as follows:
At an existing stationary source that emits or has the potential to emit 100,000 tpy CO2e when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO2e or more.
Surplus (Reductions) means actual emission reductions below the baseline (see 2.5.2 of this regulation) not required by regulations or proposed regulations, and not used by the source to meet any state or federal regulatory requirements.
2.2.5 Nitrogen oxides and SO2 shall be considered as precursors, and are considered nonattainment pollutants in any PM2.5 nonattainment area.
2.4 Conditions for Approval - No person subject to the provisions of 2.1 of this regulation shall install a major stationary source of volatile organic compounds or of nitrogen oxides, PM2.5, or sulfur oxides or make a major modification to a source which will cause or contribute to any violation of the national ambient air quality standards for ozone or PM2.5 within an area of non-attainment for that pollutant unless the following conditions are met:
2.4.4 The application for construction permit pursuant to 7 DE Admin. Code 1102 shall include an analysis of alternative sites, sizes, production processes and environmental control techniques for such proposed source which demonstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification.
2.5.7 The Department may allow the offset requirement in 2.5 of this regulation for direct PM2.5 emissions or precursors of PM2.5 (sulfur dioxide or NOx) to be satisfied by offsetting reductions in direct PM2.5 emissions or emissions of sulfur dioxide or NOx using a ratio approved by the Department for the nonattainment area after public review and comment. Prior to making a final determination on the interpollutant trading ratios for a nonattainment area, the Department shall submit the interpollutant trading ratios and supporting information to the EPA for concurrence.
2.6 Emission reductions generated in a state other than Delaware and which are placed in the emissions bank established pursuant to 7 DE Admin. Code 1134 may be used as offsets provided they are federally enforceable and meet, at a minimum, all the provisions of 7 DE Admin. Code 1134 and 2.5.5, and 2.5.6 of this regulation.
Major Stationary Source means:
PM10: Concentrations attributable to the increase in emissions from stationary sources which have converted from the use of petroleum products, natural gas, or both by reason of an order in effect under sections 2(a) and 2(b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) over the emissions from such sources before the effective date of such an order;
The provisions of 7 DE Admin. Code 1127 - STACK HEIGHTS, are applicable to 3.6 of this regulation.
Carbon monoxide: 575 ug/m3, eight-hour average;
Nitrogen dioxide: 14 ug/m3, annual average;
Sulfur dioxide: 13 ug/m3, 24-hour average;
Lead: 0.1 ug/m3, 3-month average;
Mercury: 0.25 ug/m3, 24-hour average;
Beryllium: 0.0005 ug/m3, 24-hour average;
Fluorides: 0.25 ug/m3, 24-hour average;
Vinyl chloride: 15 ug/m3, 24-hour average;
Total reduced sulfur: 10 ug/m3, one-hour average;
Hydrogen sulfide: 0.04 ug/m3, one-hour average;
PM10 particulate: 10 ug/m3, 24-hour average
PM2.5: 4 µg/m3, 24-hour average
4.1.1 was applied for, pursuant to 11.0 of 7 DE Admin. Code 1102, after August 11, 2005 and
4.1.4 has a potential to emit of equal to or greater than five tons per year of volatile organic compounds (VOC’s) or, nitrogen oxides (NOx), or sulfur dioxide (SO2) or sulfur trioxide (SO3) or both [also termed sulfur oxides (SOx)] or, fine particulate matter (PM2.5), or, the potential to emit of equal to or greater than five tone per year, in the aggregate, of any of the hazardous air pollutants (HAP’s) listed in Section 112(b) of the federal Clean Air Act.
Last Updated: December 31 1969 19:00:00.
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