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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsNovember 2018

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7 DE Admin. Code 1134
Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control ("Department" or "DNREC") pursuant to 7 Del.C. §6010 and 29 Del.C. §10113(b)(4), DNREC hereby revises Section 1134 of Title 7 of the Delaware Administrative Code to correct existing referencing error contained therein by replacing "Economic Development Office" with "Department of State, Division of Small Business." This correction is necessitated as a result of recent changes made to Delaware law, specifically, the codification of House Bill 432, effective July 1, 2018, which transferred State of Delaware economic development functions formerly located within the Delaware Department of Economic Development to the Department of State.
NOW THEREFORE, under the above-described statutory authority, and for the reasons set forth above, I hereby ORDER that the revision to 7 DE Admin. Code 1134: Emission Banking and Trading Program, be adopted and promulgated as follows, to wit:
1.1 Create market-based incentives for emission reductions of volatile organic compounds (VOCs) and nitrogen oxides (NOx);
1.2 Encourage early emission reductions and technological innovations to reduce emissions;
1.3 Encourage the creation of surplus emission reductions as emission reduction credits (ERCs);
1.4 Provide for the trading and the use of ERCs for offsets and cost-effective compliance with emission standards and limitations established by applicable requirements, where such use is specifically allowed by such applicable requirements;
1.5 Produce a net air quality benefit through the permanent retirement of a percentage of all emission reductions submitted to the Department for certification as ERCs;
1.6 Assure that ERCs are real, surplus, enforceable, permanent, and quantifiable;
1.7 Require that the use of ERCs is consistent with the Act, regulations promulgated under the Act, the State Implementation Plan (SIP), and the federal Clean Air Act;
1.8 Establish a mechanism to ensure the state and federal enforceability of ERCs; and
“Act” means Title 7, Delaware Code, Chapter 60.
“Actual emissions” mean the actual rate of emissions of a pollutant from an emission unit. Actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which immediately precedes the particular date and which is representative of normal source operation. The Department may allow the use of a different time period upon a satisfactory showing that it is more representative of normal source operation, provided that the Department agrees with such showing and provided that the emissions for that time period are, in the judgment of the Department, consistent with the SIP. The actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials used or processed, stored, or combusted during the selected time period, as applicable, and, in descending order and as required by applicable requirements:
“Allowable emissions” mean the emissions rate of an emission unit, in tons per year, calculated using the maximum rated capacity of the unit (unless the unit is subject to enforceable limits which restrict the operating rate, or hours of operation, or both, in which case the restricted operating rate or hours of operation shall be used) and the most stringent of the following:
(1) The applicable standards as set forth in 7 DE Admin. Codes 1120 and 1121;
“Area source” means a stationary source that is not individually included in the Department’s stationary source emissions inventory.
“Bank” means a depository, established by the Department, in which upon satisfaction of all applicable requirements of this regulation and any underlying regulation, ERCs may be deposited and withdrawn for use.
“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, 1987.
“Department” means the Delaware Department of Natural Resources and Environmental Control as defined in 29 Del.C. Ch 80, as amended.
“Emission reduction credit (ERC)” means an actual emission reduction equal to one whole ton per year of a particular pollutant from an emission unit that has been certified by the Department as enforceable, permanent, quantifiable, real, and surplus, in accordance with this regulation. To determine the number of whole ERCs, the number of ERCs shall be rounded down for decimals less than 0.50 and rounded up for decimals of 0.50 or greater. An ERC is a limited, contingent, non-vested authorization to emit a certain amount of air pollutants and does not constitute a property right.
“Emissions unit” means any part or activity of a source that emits or has the potential to emit any regulated air pollutant. This term is not meant to alter or affect the definition of the term "unit" for purposes of Title IV (Acid Deposition Control) of the federal Clean Air Act.
“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.
“Federal Clean Air Act (CAA)” means the Clean Air Act, 42 U.S.C. Section 7401 et seq.
“Mobile source” means on-road (highway) vehicles (e.g., automobiles, trucks and motorcycles) and nonroad vehicles (e.g., trains, airplanes, agricultural equipment, industrial equipment, construction vehicles, off-road motorcycles, and marine vessels).
“Nitrogen oxides” means oxides of nitrogen, including nitric oxide (NO) and nitrogen dioxide (NO2) and not including, for purposes of this regulation, nitrous oxide (N2O).
“Offset” means the use of an ERC to satisfy the requirements of 7 DE Admin. Code 1125 and Section 173 of the CAA as they apply to a major new or major modified stationary source, provided that particular ERC meets the requirements of 7 DE Admin. Code 1125 and Section 173 of the federal Clean Air Act (CAA).
“Owner” means a person who claims lawful possession of an ERC.
“Ozone season” means the period of time beginning on and including April 1 and continuing through October 31 of each calendar year.
“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.
“Permit” (unless the context suggests otherwise) means any permit or group of permits covering an emission unit or units that is issued, renewed, amended, or revised, or otherwise made state and federally enforceable.
“Person” means an individual, corporation, partnership, association, State, municipality, firm, or political subdivision of a State; and any agency, department, or instrumentality of the United States and any officer, agent, or employee thereof.
“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.
“Responsible official” means one of the following:
“Shutdown” means the curtailment of all operations and emissions at a facility that involves the withdrawal of all permit or permits to operate issued by the Department.
“Source” means a stationary source, an area source, or a mobile source.
“Stationary source” means any building, structure, facility or installation which emits or may emit any air pollutant subject to regulation under the federal Clean Air Act.
“Surplus (reductions)” means actual emission reductions below the baseline (see 6.0 of this regulation) not required by regulations or proposed regulations, and not used by the source to meet any state or federal regulatory requirement.
“Synthetic minor” means a source for which federally enforceable conditions (e.g., a cap on production rates, maximum hours of operation, or type of fuel) have been incorporated into a permit in order to reduce allowable emission levels below the applicability threshold of an applicable requirement.
“Trade” means the purchase, sale, conveyance or other transfer of an ERC from one person to another person.
“Use” means that approval of the Department has been obtained to apply an ERC at an emission unit.
“Volatile organic compounds” (also denoted as VOCs) mean any carbon-containing compound, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions. This includes any such organic compound other than those listed in 7 DE Admin. Code 1101, which have been determined to have negligible photochemical reactivity.
3.5 An emission reduction at an emission unit located in another state within the Ozone Transport Region may be certified as an ERC by that other state and placed in the bank established under this regulation only if the emission reduction is approved by the Department, and is enforceable by the Administrator of the EPA and the other state. The first such certification from a particular state shall be the subject of a specific revision to the Delaware State Implementation Plan (SIP) and the SIP of that other state. Any subsequent certification shall be consistent with the method or methods and assumptions approved into the SIPs.
4.2.7 Other measures including reductions resulting from pollution prevention, mobile source or transportation control measures, or any other measures that reduce actual emissions and are determined to be acceptable by the Department.
5.4 A single application must be made for each emission reduction measure employed. Multiple emission units may be covered in a single application provided that the emission reduction at each emission unit is attributable to the single emission reduction measure.
5.5 Applications for ERC certification shall express emission reductions in both ozone season tons per year and non-ozone season tons per year.
5.6 A person shall apply for certification of an emission reduction by submitting to the Department the following information:
6.3.1 Ozone season baseline.
BL1 = ER x U1 (6-1)
BL1 = Ozone season baseline in tons of pollutant per year.
U1 = Utilization factor, which is the representative percentage of the historical level of operation or production rate of the emissions unit or units during the ozone season (April 1 through October 31) for the time period approved by the Department for use in calculating actual emissions.
BL2 = ER x U2 (6-2)
BL2 = Non-ozone season baseline in tons of pollutant per year.
U2 = Utilization Factor, which is the representative percentage of the historical level of operation or production rate of the emissions unit or units during the non-ozone season (November 1 through March 31) for the time period approved by the Department for use in calculating actual emissions.
6.3.3 Note that the sum of U1 and U2 shall equal 100%.
8.2 An emission reduction may be certified as an ERC only after a reduction has actually occurred.
8.3 Schedule for Departmental review:
8.5.2 Credit for emission reductions generated by shutdowns will be reduced by the value of 50% of the total reductions. 25% of the total reductions will be retired to provide a net air quality benefit and 25% will be held in a separate account by the Delaware Economic Development Office Department of State, Division of Small Business, for economic development purposes after certification by the Department pursuant to 8.6 of this regulation.
9.8.4 ERCs generated by the use of seasonal control of VOC and NOx during the period April 1 through October 31 can be used at any time during the calendar year. ERCs generated by using seasonal control of VOC and NOx during the period November 1 through March 31 can only be used in the same season as generated (November 1 through March 31).
11.0 ERC Banking System
11.3 Information related to an ERC maintained in the emission banking system shall be available for public review.
13.1 The Department shall enforce the provisions of this regulation under applicable laws.
Last Updated: December 31 1969 19:00:00.
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