DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Air Quality

FINAL

Secretary's Order No.: 2018-A-0005

Date of Issuance: February 1, 2018

Effective Date of the Amendment: March 11, 2018

1136 Acid Rain Program

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 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.

Background, Procedural History and Findings of Fact

This Order relates to proposed regulation amendments ("Amendments") to 7 DE Admin. Code 1136, Acid Rain Program. This public hearing was held pursuant to 29 Del.C. §10407, which directs all State of Delaware executive branch agencies to conduct a periodic review of regulations promulgated by such agency to determine which regulations, if any, should be modified or eliminated. The current regulatory review process commenced on January 1, 2016, at which time the Department performed a focused review of its existing, older regulations, with the purpose to identify and remove regulatory hurdles, and modernize and streamline any regulations that may be outdated or unnecessarily burdensome, while maintaining the state's commitment to improving public health and environmental performance.

Among the considerations of the Department's review of its existing regulations was to ensure that all regulations continue to serve the original purpose for which they were adopted, and to provide for improvements. To that end, the Department's Division of Air Quality identified 7 DE Admin. Code 1136, Acid Rain Program, as an existing, older regulation which requires revision.

In reviewing this regulation (and its corresponding Federal requirements), the Department determined that there have been a number of updates to portions of 40 CFR Parts 72 - 78 (Acid Rain Program provisions) which should be adopted. These proposed Amendments will (1) clarify the Federal Acid Rain Program regulatory requirements that Electric Generating Units in Delaware are subject to by incorporating the provisions of 40 CFR Parts 72 - 78 into 7 DE Admin. Code 1136, Acid Rain Program, by reference; and (2) update the Federal reference date in 7 DE Admin. Code 1136 to reflect the revision date of the most recently published annual edition of the Code of Federal Regulations.

The Department's Division of Air Quality commenced the regulatory development process with Start Action Notice #2017-10 (July 3, 2017). The Department published its initial proposed regulation Amendments in the October 1, 2017 Delaware Register of Regulations. The Department then held a public hearing on October 25, 2017. Members of the public attended that hearing, however, no comment was received by the Department at that time. Consistent with 29 Del.C. §10118(a), the public hearing record remained open for public comment through November 10, 2017. No comment was received from the public during the post-hearing phase of this promulgation.

Hearing Officer Vest prepared a Hearing Officer's Report dated January 18, 2018 ("Report"). The Report documents the proper completion of the required regulatory amendment process, establishes the record, and recommends the adoption of the proposed Amendments as attached to the Report as Appendix "A".

Reasons and Conclusions

Based on the record developed by the Department's experts and established by the Hearing Officer's Report, I find that the proposed regulatory amendments to 7 DE Admin. Code 1136, Acid Rain Program, are well-supported. Therefore, the recommendations of the Hearing Officer are hereby adopted, and I direct that the proposed regulatory Amendments be promulgated as final.

I find that the Department's experts in the Division of Air Quality fully developed the record to support adoption of these regulatory Amendments. The adoption of these regulatory Amendments will enable the Department to (1) clarify the Federal Acid Rain Program regulatory requirements that Electric Generating Units in Delaware are subject to by incorporating the provisions of 40 CFR Parts 72 - 78 into 7 DE Admin. Code 1136, Acid Rain Program, by reference; and (2) update the Federal reference date in 7 DE Admin. Code 1136 to reflect the revision date of the most recently published annual edition of the Code of Federal Regulations.

The following reasons and conclusions are entered:

1. The Department has the statutory basis and legal authority to act with regard to the proposed regulatory amendments to 7 DE Admin. Code 1136, Acid Rain Program, 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 regulatory Amendments as final;

3. The Department provided adequate public notice of the proposed regulatory Amendments, and all proceedings associated with the same, in a manner required by the law and regulations. The Department provided the public with an adequate opportunity to comment on the proposed repeal, including at the time of the public hearing held on October 25, 2017, and held the record open through close of business on November 10, 2017, consistent with 29 Del.C. §10118(a), in order to consider public comment on the same before making any final decision;

4. Promulgation of the proposed regulatory amendments to 7 DE Admin. Code 1136, Acid Rain Program will enable the Department to (1) clarify the Federal Acid Rain Program regulatory requirements that Electric Generating Units in Delaware are subject to by incorporating the provisions of 40 CFR Parts 72 - 78 into 7 DE Admin. Code 1136, Acid Rain Program, by reference; and (2) update the Federal reference date in 7 DE Admin. Code 1136 to reflect the revision date of the most recently published annual edition of the Code of Federal Regulations;

5. The Department has reviewed these proposed regulatory Amendments in the light of the Regulatory Flexibility Act, consistent with 29 Del.C. Ch. 104, and has selected Exemption "B5" regarding same, as this proposed promulgation involves regulations that are required by federal law, and/or have already complied with the federal Regulatory Flexibility Act, 5 U.S.C. §601 et seq.;

6. The Department's Hearing Officer's Report, including its established record and the recommended proposed regulatory Amendments as set forth in Appendix "A", are hereby adopted to provide additional reasons and findings for this Order;

7. The Department's proposed regulatory Amendments, as published in the October 1, 2017 Delaware Register of Regulations, and as set forth in Appendix "A" as noted above, are adequately supported, are not arbitrary or capricious, and are consistent with the applicable laws and regulations. Consequently, they are approved as final regulatory Amendments, which shall go into effect ten days after their publication in the next available issue of the Delaware Register of Regulations; and

8. The Department shall submit this Order approving as final the proposed Amendments to 7 DE Admin. Code 1136, Acid Rain Program, 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.

Shawn M. Garvin,

Secretary

1136 Acid Rain Program

09/11/1996 [xx/xx/2017 3/11/2018]

The provisions of Parts 72 through 78, of Title 40 of the Code of Federal Regulations, dated July 1, 1995 [2017 2016], are hereby incorporated into this regulation by reference. Within this regulation, the term permitting authority shall mean the Secretary of Delaware Department of Natural Resources & Environmental Control.