department of natural resources and environmental control

Division of Air and Waste Management

GENERAL NOTICE

Secretary’s Order Number 2009-A-0030

Approval Of Revision To State Implementation Plan For Meeting The Infrastructure Requirements Of The Federal Clean Air Act For Fine Particulate Matter

Date of Issuance: September 1, 2009

Effective Date: September 1, 2009

Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control ("Department" or "DNREC") under 29 Del. C. §§8001 et seq. and 7 Del. C. §6010(c), this Order is entered to approve a revision to the State Implementation Plan required under the federal Clean Air Act and regulations promulgated by the United States Environmental Protection Agency ("EPA").

Background

EPA delegated authority to the Department to administer certain responsibilities in Delaware under the federal Clean Air Act, as amended, 42 U.S.C.§§7401 et seq. ("CAA"). The delegation included preparing Delaware's State Implementation Plan ("SIP"), which consists of regulations, source specific requirements, plans and emission inventories that together identify how Delaware will attain and maintain air quality that conforms to primary and secondary National Ambient Air Quality Standards ("NAAQS"), which are EPA regulations. Delaware's SIP is reflected in EPA's regulations at 40 C.F.R. Part 52, Subpart I. The Delaware SIP is subject to ongoing revisions, which reflects Delaware's progress towards the goal of cleaner air quality. The SIP provides a road map of the regulatory procedures undertaken to control and reduce air pollutants under the Department's authority provided by federal and state laws and regulations. EPA's regulations require that the Department submit Delaware's SIP revisions for EPA's review and approval. On September 21, 2006 EPA promulgated a new NAAQS for daily (24-hr) fine particulate matter, and Delaware, like other states, is required to submit its Report three years from the promulgation date, or by September 21, 2009. In response, the Department's technical experts within the Division of Air and Waste Management, Air Quality Management Section prepared a draft plan revision "State Implementation Plan for Meeting the Infrastructure Requirements of the Clean Air Act for Fine Particulate Matter" (hereinafter "Report"). The Department held a duly noticed public hearing on the Report on August 27, 2009 in the Department's Dover offices of AQMS. At the public hearing, the Department's expert, Mark Prettyman, presented the proposed report and introduced documents into the record to support its adoption as a final Plan revision. EPA presented the Department with additional written comments during the public comment period and the Department made the EPA recommended non-substantive changes as submitted as the proposed final plan at the hearing. The Department's presiding hearing officer, Robert P. Haynes, recommended at the hearing that the Department approve the proposed Report, as revised, and submit to EPA as a SIP revision to show compliance with the federal law and regulations.

The Department did not receive any comments except from EPA. The Department reflected the EPA suggested non-substantive changes in the revised Report admitted into the record at the public hearing, a copy of which is attached hereto as Appendix A. The Department's presiding hearing officer indicated at the public hearing that he recommended approval of the proposed revision and that the record developed at the hearing, as described in the transcripts, supported his recommendation and would support a final decision.

Reasons and Findings

I find that approval of the Report in Appendix A is well-supported by the record developed at the public hearing and that the Report should be adopted as a revision to the SIP. The Report was the subject of public notices that provided the public with the opportunity to comment on the Report. The Department received only the comments from EPA during the public comment period that ended at the August 27, 2009 public hearing. I agree that the proposed SIP revision should be approved and that the Department should submit the Report in Appendix A to EPA to show Delaware's compliance with the CAA and EPA's reporting requirements under the CAA. The SIP revision sets forth the Department's progress in promulgating many regulations that will significantly reduce the emission of air pollutants and allow Delaware to comply with the 24-hour fine particulate matter NAAQS by 2014. These regulatory efforts will enable Delaware to meet the visibility related obligations imposed by the CAA and EPA's regulations and will result in healthier air for Delaware.

In conclusion, the following findings and conclusions are entered:

1. The Department, acting through this Order of the Secretary, hereby approves as reasonable the July 1, 2009 Report, revised on August 28, 2009 in response to EPA's non-substantive comments. The final Report is attached hereto as Appendix A, and together with this Order will be submitted to EPA as the latest Delaware SIP revision; and

2. The Department shall have this Order published in the Delaware Register of Regulations and in newspapers in the same manner as the notice of the proposed SIP revision.

Collin O'Mara

Secretary

Implementation, Maintenance, And Enforcement of the 2006 24-Hr National Ambient Air Quality Standards (NAAQS)

A State Implementation Plan ("SIP") is a state plan that identifies how that state will attain and maintain air quality that conforms to each primary and secondary National Ambient Air Quality Standard ("NAAQS"). The SIP is a complex, fluid document containing regulations, source-specific requirements, and non-regulatory items such as plans and emission inventories.

Delaware's initial SIP was approved by the EPA on May 31, 1972. Since this initial approval, the Delaware SIP has been revised numerous times to address air quality non-attainment and maintenance issues. This was done by updating plans and inventories, and adding new and revised regulatory control requirements. Delaware's SIP is compiled at 40 C.F.R. Part 52 Subpart I.

Section 2.0 of this document is a revision to Delaware's SIP. The purpose of this SIP revision is to detail how Delaware meets all of the necessary implementation, maintenance, and enforcement measures required by the Clean Air Act ("CAA"), specifically, CAA §110(a)(1) and (2). This SIP revision is necessary because the EPA finalized a new 24-hour PM2.5 NAAQS in September on October 17, 2006 (71 FR 61144), and "infrastructure SIPs" are due to the EPA within 3-years from the date of signature of any new NAAQS under CAA Section 110(a). Under the heading "Delaware's Plan" in Section 2.0 of this document Delaware provides a revision to its SIP to address those requirements of Section 110(a)(2)(A)-(M) of the CAA which have not been addressed in other SIP revisions. It is a compilation of certain elements that describe how Delaware demonstrates the 2006 24-hr fine particulate (PM2.5) NAAQS is being implemented, maintained and enforced. The elements of this SIP revision, once approved by EPA, will provide a federally enforceable written confirmation that Delaware will continue to comply with the Section 110(a)(2) requirements of the CAA.

Legislative authority for the Delaware air quality program relating to the responsibilities in the CAA is codified in Title 7 "Conservation" of the Delaware Code, Chapter 60 - Delaware's comprehensive water and air resources conservation law, which gives the Delaware DNREC the power and duty to implement the provisions of the CAA in the State of Delaware.

Many of the miscellaneous requirements of Section 110(a)(2)(A)-(M) of the CAA relevant to the 2006 PM2.5 NAAQS are already contained in Delaware's SIP or in SIP revisions which have been submitted to but not yet approved by EPA. The following Table identifies those SIP provisions, which have all gone through public notice and hearing prior to submittal to EPA. The following Table also identifies those infrastructure requirements which are not applicable to Delaware.

Table - 110(a)(2)(A)-(M) Requirements in the Current State of Delaware SIP

1. All of the State of Delaware "Regulations Governing the Control of Air Pollution" have been re-coded under 7 DE Admin. Code 1100, effective September 11,2008. This recoding was submitted to the EPA as a SIP on June 15, 2009, but has not yet been approved into the DE SIP. Because of this some of Delaware's control requirements are cited in this document in the old format. For example, "7 DE Admin. Code 1131" is cited as "Regulation 31

This SIP revision addresses those requirements of Section 110(a)(2)(A)-(M) of the Clean Air Act (CAA) which have not been addressed in other SIP revisions. Each of the requirements of §110(a)(2) of the CAA (Subparagraphs A-M) is presented below, along with a discussion of Delaware's plan revision to meet the requirement.

(A) §110(a)(2)(A) Requirement: Include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of this Act.

Delaware's Plan: Delaware has established laws and regulations that include enforceable emissions limitations and other control measures, means or techniques, as well as schedules and timetables for compliance to meet the applicable requirements of the CAA. Delaware may make changes to its laws and regulations that it believes in its discretion are appropriate, while continuing to fulfill this obligation.

At present, Delaware's statutory authority is set out in Title 7 "Conservation" of the Delaware Code, Chapter 60 - Delaware's comprehensive water and air resources conservation law. Legislative authority giving the Secretary of the Delaware Department of Natural Resources and Environmental Control the authority to promulgate Regulations is codified at 7 Del. C., Chapter 60. This authority is also applicable to the 2006 PM2.5 NAAQS.

(B) §110(a)(2)(B) Requirement: Provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to - (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator.

Delaware's SIP already contains other elements, namely, 7 DE Admin. Code 1117 Source Monitoring2, Record Keeping and Reporting and 7 DE Admin. Code 1113, Ambient Air Quality Standards, addressing §110(a)(A) as discussed in the section 1.0 and the table thereto of this document.

2. All of the State of Delaware "Regulations Governing the Control of Air Pollution" have been re-coded under 7 DE Admin. Code 1100, effective September 11, 2008. This recoding was submitted to the EPA as a SIP on June 15, 2009, but has not yet been approved into the DE SIP. Delaware's control requirements are cited in Section 2 in the new format. For example, "Regulation 31" is cited as "7 DE Admin. Code 1131".

Delaware's Plan: Delaware has established and currently operates appropriate devices, methods, systems and procedures necessary to monitor, compile and analyze data on ambient air quality, and upon request, makes such data available to the Administrator. Delaware will continue to operate devices, methods, systems and procedures and may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation. At present, Delaware does this as follows for the 2006 24-hr PM2.5 matter NAAQS:

(C) §110(a)(2)(C) Requirement: Include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D.

For the 2006 PM2.5 NAAQS, Delaware's SIP already contains the other elements addressing §110(a)(C) as discussed in the section 1.0 and the table thereto of this document.

Delaware's Plan: Delaware has established and currently operates a program to provide for the enforcement of the enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA and to regulate the modification and construction of any stationary source within areas covered by its SIP as necessary to assure the NAAQS are achieved, including permit programs required in parts C and D. At present, Delaware as part of its Air Quality Management Section function exercises its programmatic authority to utilize the enforcement powers set out in 7 Del. C. §6005 entitled "Enforcement; civil and administrative penalties; expenses"; 7 Del. C. §6013 entitled "Criminal penalties"; and 7 Del. C. §6018 entitled "Cease and desist order." Delaware will continue to operate this program and may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation.

(D) §110(a)(2)(D) Requirement: Contain adequate provisions - (i) prohibiting, consistent with the provisions of this title, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will - (I) contribute significantly to non-attainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the applicable implementation plan for any other State under part C to prevent significant deterioration of air quality or to protect visibility, (ii) insuring compliance with the applicable requirements of sections 1263 and 1154 (relating to interstate and international pollution abatement).

3. §126(a) - Each plan shall (1) require each major proposed new or modified source (A) subject to Part C or (D) which may significantly contribute to pollution in excess of the NAAQS in any AQCR outside the State in which such source intends to locate or modify, to provide written notice to all nearby States the pollution levels of which may be affected by such source 60 days prior to the date on which commencement of construction is to be permitted by the State, and (2) identify all major existing stationary sources which may have the impact described in (1) with respect to new or modified sources and provide notice to all nearby States of the identity of such sources. (b) Any State may petition EPA for a finding that any major source or group of stationary sources emits or would emit any pollutant in violation of the prohibition of §110(a)(2)(D)(ii) or this section. (c) Notwithstanding any permit which may have been granted by the State, it shall be a violation of this section and the plan - (1) for any major proposed new or modified source with respect to which a finding has been made under subsection (b) to be constructed or to operate in violation of this section and the prohibition of §110(a)(2)(D)(ii) or this section, or (2) for any major existing source to operate more than 3 months after such finding has been made. EPA may permit the continued operation of a source beyond the expiration of the 3-month period if the source complies with the emission limitations and compliance schedules as may be provided by EPA to bring about compliance with the requirements of §110(a)(2)(D)(ii). Nothing shall be construed to preclude any such source from being eligible for an enforcement order under §113(d) after the expiration of such period during which EPA has permitted continuous operation.

4. §115(a) - Whenever EPA, upon receipt of reports, surveys or studies from any duly constituted international agency has reason to believe that any pollutants emitted in the US cause or contribute to pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country or whenever the Secretary of State requests it to do so, EPA shall give formal notification to the Governor of the State in which such emissions originate. (b) The EPA notice shall be deemed to be a finding under §110(a)(2)(H)(ii) which requires a plan revision with respect to so much of the applicable plan as is inadequate to prevent or eliminate the endangerment. Any foreign country so affected by such emission of pollutants shall be invited to appear at any public hearing associated with any revision of the appropriate portion of the applicable plan. (c) This section shall apply only to a foreign country which EPA determines has given the US the same rights with respect to the prevention or control of air pollution occurring in that country. (d) Recommendations issued following any abatement conference conducted prior to CAA 1977 shall remain in effect with respect to any pollutant for which no NAAQS has been established under § 109 unless EPA, after consultation with all agencies, which were party to the conference, rescinds any such recommendation.

Delaware's Plan: The implementation plan for Delaware and recently submitted SIP revisions presently contain adequate provisions prohibiting sources from emitting air pollutants in amounts which will contribute significantly to non-attainment or interfere with maintenance with any NAAQS and to prevent interference with measures related to preventing significant deterioration of air quality or which have to date proved adequate to protect visibility and to address interstate and international pollutant abatement; however, Delaware may make changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation. At present, Delaware's legal authority is contained in the following:

(E) §110(a)(2)(E) Requirement: Provide (i) necessary assurances that the state (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the state or general purpose local governments for such purpose) will have adequate personnel, funding, and authority under state (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of federal or state law from carrying out such implementation plan or portion thereof), (ii) requirements that the State comply with the requirements respecting State boards under section 128,5 and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provision.

The elements of §§110(a)(2)(E)(ii) and (iii) are not applicable to Delaware as discussed in section 1.0 and the table thereto of this document.

Delaware's Plan: With respect to the remaining obligations under this section, Delaware assures EPA that it has adequate authority under state law pursuant to 7 Del. C. Chapter 60 to carry out its SIP obligations with respect to the 24-hr PM2.5 NAAQS. DNREC does not believe that there is any prohibition in any federal or state law that would prevent it from carrying out its SIP or any portion thereof. Further, DNREC assures EPA that it has, through the State of Delaware General Fund and through the Title V fee program, and will continue to have, funding to carry out its SIP obligations. Further, DNREC believes its funding sources are sufficient to provide adequate personnel for those purposes; however, Delaware may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation.

At present Delaware fulfills this obligation by virtue of having adequate personnel and funding through the CAA §105 grant process (federal grant funds), the State of Delaware general fund (state tax revenues), and appropriated special funds collected by the State of Delaware from application fees, permit fees, renewal fees, and civil or administrative penalties or fines. Delaware does not anticipate the need for additional resources beyond those to be appropriated in the above manner to carry out its SIP requirements.

5. §128 (a) each plan shall contain requirements that - (1) any board or body which approves permits or enforcement orders shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders, and (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be disclosed. A State may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of executive agencies, or any other entities which are more stringent than the requirements of (1) and (2)

(F) §110(a)(2)(F) Requirement: Require, as may be prescribed by the Administrator - (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to this Act, which reports shall be available at reasonable times for public inspection.

Delaware's Plan: Delaware requires that owners or operators of stationary sources monitor and submit periodic reports on the nature and amounts of PM2.5 emissions and emissions related-date emissions from the sources. This may include the installation, maintenance and replacement of equipment, where appropriate. This information submitted to DNREC is available to the public at reasonable times for public inspection pursuant to Delaware law. Delaware will continue to require reporting of emissions but may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation.

Except as specifically exempted by the Delaware Freedom of Information Act, 29 Del.C. Chapter 100, Delaware makes all records, reports or information obtained by the Department or referred to at public hearings available to the public pursuant to the provisions of the Delaware Freedom of Information Act, 29 Del. C. Chapter 100.

(G) §110(a)(2)(G) Requirement: Provide for authority comparable to that in section 303 and adequate contingency plans to implement such authority;6

Delaware's SIP contains an emergency episode plan for PM10 fine particulates as discussed in the section 1.0 and the table thereto of this document. For the 1997 and 2006 PM2.5 NAAQS, the emergency episode plan will be updated after EPA develops new thresholds per 40 C.F.R. 52.420(c), as necessary updated as required by EPA.

Delaware's Plan: Delaware has authority comparable to that in section 303 and adequate contingency plans to implement such authority but may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation.

7 Del.C. §6003(a)(1) requires a permit from the Secretary prior to discharging any air contaminant. 7 Del.C. §6002(2) defines air contaminant essentially as any substance other than uncombined water. 7 Del.C. §6005 allows the Secretary to seek a preliminary or permanent injunction or temporary restraining order for any discharge of an air contaminant without a permit, and issue cease and desist orders for violations (7 Del.C. §6018). Thus, it necessarily follows that any discharge of an air contaminant that would cause imminent & substantial endangerment to the health, safety and welfare of the people of the State of Delaware or the environment would constitute a sufficient basis for the Secretary to seek an injunction or temporary restraining order to halt the violation.

6. Sec. 303- Notwithstanding any other provisions of this Act, the Administrator upon receipt of evidence that a pollution source or combination of sources (including moving sources) is presenting an imminent and substantial endangerment to public health or welfare, or the environment, may bring suit on behalf of the United States in the appropriate United States District court to immediately restrain any person causing or contributing to the alleged pollution to stop the emission of air pollutants causing or contributing to such pollution or to take such other action as may be necessary. If it is not practicable to assure prompt protection of public health or welfare or the environment by commencement of such a civil action, the Administrator may issue such orders as may be necessary to protect public health or welfare or the environment. Prior to taking any action under this section, the Administrator shall consult with appropriate State and local authorities and attempt to confirm the accuracy of the information on which the action proposed to be taken is based. Any order issued by the Administrator under this section shall be effective upon issuance and shall remain in effect for a period of not more than 60 days, unless the Administrator brings an action pursuant to the first sentence of this section before the expiration of that period. Whenever the Administrator brings such an action within the 60-day period, such order shall remain in effect for an additional 14 days or for such longer period as may be authorized by the court in which such action is brought.

(H) §110(a)(2)(H) Requirement: Provide for revision of such plan - (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the plan is substantially inadequate to attain the national ambient air quality standard which it implements or to otherwise comply with any additional requirements established under this Act.

Delaware's Plan: Delaware will review and revise its SIP from time to time as may be necessary to take account of revisions of such primary or secondary NAAQS or the availability of improved or more expeditious methods of attaining such standard and whenever the Administrator finds on the basis of information available to the Administrator that the plan is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements established under the CAA.

For the 2006 24-hr fine particulate matter.5 NAAQS, the attainment demonstration is not yet due under the CAA, and will be developed as a SIP revision, as required.

(I) §110(a)(2)(I) Requirement: In the case of a plan or plan revision for an area designated as a non-attainment area, meet the applicable requirements of part D (relating to non-attainment areas).

For the 1997 annual PM2.5 NAAQS, Delaware's SIP or recent SIP revisions already contain other elements addressing §110(a)(I) as discussed in the section 1.0 and the table thereto of this document, as well as §110(a)(2)(D)of section 2. Many of these also apply to the 2006 24-hr PM2.5 NAAQS. [For the 2006 24-hr PM2.5 NAAQS, any remaining applicable requirements, which are not yet due under the CAA, will be developed as SIP revisions, as required.]

(J) §110(a)(2)(J) Requirement: Meet the applicable requirements of section 121 (relating to consultation), section 127 (relating to public notification), and part C (relating to prevention of significant deterioration of air quality and visibility protection).7

7. §121. - In carrying out requirements for plans to contain - (1) any transportation controls, air quality maintenance plan requirements or preconstruction review of direct sources of pollution, or (2) any measure referred to - (A) in part D), or (B) in part C, and in carrying out the requirements of §113(d), the State shall provide a satisfactory process of consultation with general purpose local governments, designated organizations of elected officials of local governments and any FLM having authority over Federal land to which the State plan applies. Such process shall be in accordance with regulations promulgated by EPA. Only a general purpose unit of local government, regional agency, or council of governments adversely affected by action of EPA approving any portion of a plan may petition for judicial review.

§127. (a) - Each plan shall contain measures to regularly notify the public of when any NAAQS is exceeded or was exceeded during the preceding year, to advise the public of health hazards associated with such pollution, and to enhance awareness of measures which can be taken to prevent the standards from being exceeded and ways in which the public can participate in regulatory and other efforts to improve air quality.

Delaware's Plan: Delaware will meet the applicable requirements of section 121 (relating to consultation), section 127 (relating to public notification), and has met the applicable part C (relating to prevention of significant deterioration of air quality and visibility protection) in Delaware's Visibility SIP submitted to EPA September 25, 2008; but may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation. At present, Delaware does so utilizing the following:

8. 7 DE Admin. Code 11 32 was submitted as a revision to the Delaware SIP in a separate submittal.

(K) §110(a)(2)(K) Requirement: Provide for - (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.

For the annual PM2.5 NAAQS, Delaware's SIP or recently submitted SIP revisions contains required modeling as discussed in the section 1.0 and the table thereto of this document. For the 2006 24-hr PM2.5 NAAQS, any remaining applicable requirements, which are not yet due under the CAA, will be developed as SIP revisions, as required.

Delaware's Plan: Delaware will continue to perform modeling as required under the CAA to demonstrate attainment), but may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation. Delaware will continue to submit the Air Quality modeling data as part of Delaware's relevant SIP submissions and through federal grant commitments or in other ways that EPA may request.

(L) §110(a)(2)(L) Requirement: Require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this Act, a fee sufficient to cover - (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under Title V.

Delaware's Plan: In a manner consistent with Delaware law, Delaware will continue to require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this Act, a fee sufficient to cover (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V pursuant to Delaware law. Delaware currently fulfills this under the enabling authority of 7 Del.C. § 6095 to 6099 and fee legislation that currently is renewed every three years. Delaware has a fully approved Title V operating permits program. See paragraphs (b) and (c) under "Delaware" in Appendix A to 40 CFR Part 70-Approval Status of State and Local Operating Permits Programs. Delaware may make changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation.

(M) §110(a)(2)(M) Requirement: Provide for consultation and participation by local political subdivisions affected by the plan.

Delaware's Plan: Delaware will continue to provide for consultation and participation by local political subdivisions affected by the SIP pursuant to the public notice laws found in 7 Del.C. §6006 and 6010 and 29 Del.C. Chapters 10003, 10004 and 10115, as applicable. Furthermore, all SIP revisions undergo public notice and hearing which have allowed for comment by the public which includes local political subdivisions. We believe the public notice and hearing processes fulfill the requirements for consultation with local political subdivisions affected by the SIP.

Based on the information provided above, Delaware fully complies with the requirements of §110(a)(2)(A) through §110(a)(2)(M).

Secretary's Order No. 2009-A-0031

Approval Of Revision To State Implementation Plan For Ozone, Fine Particulate Matter (Pm2.5), National Ambient Air Quality Standards And Visibility

Date of Issuance: September 1, 2009

Effective Date: September 1, 2009

Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control (Department) under 29 Del.C. §§8001 et seq. and 7 Del.C. §6010(c), this Order is entered to approve a revision to the State Implementation Plan required under the federal Clean Air Act and regulations promulgated by the United States Environmental Protection Agency (EPA).

Background

EPA delegated authority to the Department to administer certain responsibilities in Delaware under the federal Clean Air Act, as amended, 42 U.S.C.§§7401 et seq. (CAA). The delegation included preparing Delaware's State Implementation Plan (SIP), which consists of regulations, source specific requirements, plans and emission inventories that together identify how Delaware will attain and maintain air quality that conforms to primary and secondary National Ambient Air Quality Standards (NAAQS), which are EPA regulations. Delaware's SIP is reflected in EPA's regulations at 40 C.F.R. Part 52, Subpart I. The Delaware SIP is subject to ongoing revisions, which reflects Delaware's progress towards the goal of cleaner air quality. The SIP provides a road map of the regulatory procedures undertaken to control and reduce air pollutants under the Department's authority provided by federal and state laws and regulations. EPA's regulations require that the Department submit Delaware's SIP revisions for EPA's review and approval.

On December 13, 2007, the Department submitted to EPA a report entitled 'State Implementation Plan Revision for Ozone, Fine Particulate Matter (PM2.5) and Visibility.' EPA's review of this report resulted in its request to clarify and supplement certain language, and the Department's Division of Air and Waste Management, Air Quality Management Section (AQMS) prepared the proposed revised report, dated July 13, 2009 to reflect EPA's requested changes to the 2007 submission.

The Department held a duly noticed public hearing on the Report on August 27, 2009 in the Department's Dover offices of AQMS. At the public hearing, the Department's expert, Mark Prettyman, presented the proposed report and introduced documents into the record to support its adoption as a final Plan revision. EPA provided the Department with additional written comments during the public comment period and the Department made the EPA recommended non-substantive changes. AQMS as submitted as the proposed final plan at the hearing. The Department's presiding hearing officer, Robert P. Haynes, recommended at the hearing that the Department approve the proposed Report, as revised, and submit to EPA as a SIP revision to show compliance with the federal law and regulations.

The Department did not receive any comments except from EPA. The Department reflected the EPA suggested non-substantive changes in the revised Report admitted into the record at the public hearing, a copy of which is attached hereto as Appendix A. The Department's presiding hearing officer indicated at the public hearing that he recommended approval of the proposed revision and that the record developed at the hearing, as described in the transcripts, supported his recommendation and would support a final decision.

Reasons and Findings

I find that approval of the Report, as attached hereto as Appendix A in its final plan, is well-supported by the record developed at the public hearing and that the Report should be adopted as a revision to the SIP. The Report was the subject of public notices that provided the public with the opportunity to comment on the Report. The Department received only the comments from EPA during the public comment period that ended at the August 27, 2009 public hearing. I agree that the proposed SIP revision should be approved and that the Department should submit the Report in Appendix A to EPA to show Delaware's compliance with the CAA and EPA's reporting requirements under the CAA. The SIP revision sets forth the Department's progress in promulgating the regulations to significantly reduce air emission of pollutants and enable Delaware to comply with the 8 hour ozone and annual fine particulate matter established in the NAAQS by 2010. These regulatory actions will enable Delaware to meet the visibility related obligations imposed by the CAA and EPA's regulations and will result in healthier air for Delaware.

In conclusion, the following findings and conclusions are entered:

1. The Department, acting through this Order of the Secretary, hereby approves as reasonable the July 13, 2009 Report, revised on August 28, 2009 in response to EPA's non-substantive comments. The final Report and this Order will be submitted to EPA as the latest Delaware SIP revision; and

2. The Department shall have this Order published in the Delaware Register of Regulations and in newspapers in the same manner as the notice of the proposed SIP revision.

Collin O'Mara

Secretary

Implementation, Maintenance, And Enforcement of National Ambient Air Quality Standards, Amendment to the State Implementation Plan Revision For Ozone, Fine Particulate Matter (PM2.5), and Visibility

(as submitted on December 2007)

August 25, 2009

A State Implementation Plan ("SIP") is a state plan that identifies how that state will attain and maintain air quality that conforms to each primary and secondary National Ambient Air Quality Standard ("NAAQS"). The SIP is a complex, fluid document containing regulations, source-specific requirements, and non-regulatory items such as plans and emission inventories.

Delaware's initial SIP was approved by the EPA on May 31, 1972. Since this initial approval, the Delaware SIP has been revised numerous times to address air quality non-attainment and maintenance issues. This was done by updating plans and inventories, and adding new and revised regulatory control requirements. Delaware's SIP is compiled at 40 C.F.R. Part 52 Subpart I.

Section 2.0 of this document is a revision to Delaware's SIP. The purpose of this SIP revision is to detail how Delaware meets all of the necessary implementation, maintenance, and enforcement measures required by the Clean Air Act ("CAA"), specifically, CAA §110(a)(2). Under the heading "Delaware's Plan" in Section 2.0 of this document Delaware provides a revision to its SIP to address those requirements of Section 110(a)(2)(A)-(M) of the CAA which have not been addressed in other SIP revisions. It is a compilation of certain elements that describe how Delaware demonstrates how the 1997 eight-hour ozone and in some cases the 1997 fine particulate (PM2.5) NAAQS are being implemented, maintained and enforced. The elements of this SIP revision, once approved by EPA, will provide a federally enforceable written confirmation that Delaware will continue to comply with the Section 110(a)(2) requirements of the CAA.

Legislative authority for the Delaware air quality program relating to the responsibilities in the CAA is codified in Title 7 "Conservation" of the Delaware Code, Chapter 60 - Delaware's comprehensive water and air resources conservation law, which gives the Delaware DNREC the power and duty to implement the provisions of the CAA in the State of Delaware.

Many of the miscellaneous requirements of Section 110(a)(2)(A)-(M) of the CAA relevant to the 1997 eight-hour ozone and 1997 fine particulate (PM2.5) NAAQS are already contained in Delaware's SIP or in SIP revisions which have been submitted to but not yet approved by EPA. The following Table identifies those SIP provisions. The attainment and base year inventory plans and the regulations cited in the following Table have gone through public notice and hearing prior to submittal to EPA. The following Table also identifies those infrastructure requirements which are not applicable to Delaware.

Table - 110(a)(2)(A)-(M) Requirements in the Current State of Delaware SIP

This SIP revision addresses those requirements of Section 110(a)(2)(A)-(M) of the Clean Air Act (CAA) which have not been addressed in other SIP revisions. Each of the requirements of §110(a)(2) of the CAA (Subparagraphs A–M) is presented below, along with a discussion of Delaware’s plan revision to meet the requirement.

(A) §110(a)(2)(A) Requirement: Include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of this Act.

[For the ozone NAAQS, Delaware’s SIP or recent SIP revisions already contain other elements addressing §110(a)(2)(A) as discussed in the section 1.0 and the table thereto of this document. Many of these also apply to the fine particulate (PM2.5) NAAQS. For the fine particulate (PM2.5) NAAQS, any remaining applicable requirements under §110(a)(2)(A) will be addressed in future SIP revisions.]

Delaware’s Plan: Delaware has established laws and regulations that include enforceable emissions limitations and other control measures, means or techniques, as well as schedules and timetables for compliance to meet the applicable requirements of the CAA. Delaware may make changes to its laws and regulations that it believes in its discretion are appropriate, while continuing to fulfill this obligation.

At present, Delaware’s statutory authority is set out in Title 7 “Conservation” of the Delaware Code, Chapter 60 – Delaware’s comprehensive water and air resources conservation law. Legislative authority giving the Secretary of the Delaware Department of Natural Resources and Environmental Control the authority to promulgate Regulations is codified at 7 Del. C., Chapter 60. This authority is applicable to the 1997 ozone as well as the 1997 fine particulate (PM2.5) NAAQS.

(B) §110(a)(2)(B) Requirement: Provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator.

Delaware’s SIP already contains other elements, namely, Regulation No. 3, 7 DE Admin. Code 1103¹2 Ambient Air Quality Standards, and 7 DE Admin. Code 1117 of the State of Delaware Regulations Governing the Control of Air Pollution addressing §110(a)(A), as discussed in the section 1.0 and the table thereto of this document.

Delaware’s Plan: Delaware has established and currently operates appropriate devices, methods, systems and procedures necessary to monitor, compile and analyze data on ambient air quality, and upon request, makes such data available to the Administrator. Delaware will continue to operate devices, methods, systems and procedures and may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation. At present, Delaware does this as follows for both the 1997 ozone and fine particulate matter NAAQS:

Delaware has and will continue to submit data to EPA's Air Quality System (“AQS”) in a timely manner in accordance to the scheduled prescribed by the U.S. EPA in 40 CFR Part 58.

(C) §110(a)(2)(C) Requirement: Include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D.

For the ozone 1997 ozone and 1997 PM2.5 NAAQS, Delaware’s ozone and PM2.5 SIPs already contains the other elements addressing §110(a)(C) as discussed in the section 1.0 and the table thereto of this document. These also apply to the fine particulate (PM2.5) NAAQS. For the fine particulate (PM2.5) NAAQS, any remaining applicable requirements under §110(a)(2)(C) will be addressed in future SIP revisions.

Delaware’s Plan: Delaware has established and currently operates a program to provide for the enforcement of the enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA and to regulate the modification and construction of any stationary source within areas covered by its SIP as necessary to assure the NAAQS are achieved, including permit programs required in parts C and D. At present, Delaware as part of its Air Quality Management Section function exercises its programmatic authority to utilize the enforcement powers set out in 7 Del. C. §6005 entitled “Enforcement; civil and administrative penalties; expenses”; 7 Del. C. §6013 entitled “Criminal penalties”; and 7 Del. C. §6018 entitled “Cease and desist order.” Delaware will continue to operate this program and may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation.

(D) §110(a)(2)(D) Requirement: Contain adequate provisions – (i) prohibiting, consistent with the provisions of this title, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will - (I) contribute significantly to non-attainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the applicable implementation plan for any other State under part C to prevent significant deterioration of air quality or to protect visibility, (ii) insuring compliance with the applicable requirements of sections 126 ²3 and 115 ³4 (relating to interstate and international pollution abatement).

Delaware’s Plan: The implementation plan for Delaware and recently submitted Ozone, PM2.5 and Visibility SIP revisions presently contain adequate provisions prohibiting sources from emitting air pollutants in amounts which will contribute significantly to non-attainment or interfere with maintenance with any NAAQS and to prevent interference with measures related to preventing significant deterioration of air quality or which have to date proved adequate to protect visibility and to address interstate and international pollutant abatement; however, Delaware may make changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation. At present, Delaware’s legal authority is contained in the following:

(E) §110(a)(2)(E) Requirement: Provide (i) necessary assurances that the state (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the state or general purpose local governments for such purpose) will have adequate personnel, funding, and authority under state (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of federal or state law from carrying out such implementation plan or portion thereof), (ii) requirements that the State comply with the requirements respecting State boards under section 128,⁷6 and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provision.

The elements of §110(a)(2)(E)(ii) and (iii) are not applicable to Delaware as discussed in section 1.0 and the table thereto of this document.

Delaware’s Plan: With respect to the remaining obligations under this section, Delaware assures EPA that it has adequate authority under state law pursuant to 7 Del. C. Chapter 60 to carry out its SIP obligations with respect to both the 1997 8-hour ozone and the 1997 fine particulate (PM2.5) NAAQS. DNREC does not believe that there is any prohibition in any federal or state law that would prevent it from carrying out its SIP or any portion thereof. Further, DNREC assures EPA that it has, through the State of Delaware General Fund and through the Title V fee program, and will continue to have, funding to carry out its SIP obligations. Further, DNREC believes its funding sources are sufficient to provide adequate personnel for those purposes; however, Delaware may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation.

At present Delaware fulfills this obligation by virtue of having adequate personnel and funding through the CAA §105 grant process (federal grant funds), the State of Delaware general fund (state tax revenues), and appropriated special funds collected by the State of Delaware from application fees, permit fees, renewal fees, and civil or administrative penalties or fines. Delaware does not anticipate the need for additional resources beyond those to be appropriated in the above manner to carry out its SIP requirements.

(F) §110(a)(2)(F) Requirement: Require, as may be prescribed by the Administrator - (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to this Act, which reports shall be available at reasonable times for public inspection.

For the 1997 ozone and 1997 PM2.5 NAAQS, Delaware’s SIPs already contains the other elements addressing §§110(a)(F)(i) and (ii) as discussed in the section 1.0 and the table thereto of this document. These also apply to the fine particulate (PM2.5) NAAQS. For the fine particulate (PM2.5) NAAQS, any remaining applicable requirements under §110(a)(2)(C) will be addressed in future SIP revisions.

Delaware’s Plan: Delaware requires that owners or operators of stationary sources monitor and submit periodic reports on the nature and amounts of emissions and emissions related-date emissions from the sources. This may include the installation, maintenance and replacement of equipment, where appropriate. This information submitted to DNREC is available to the public at reasonable times for public inspection pursuant to Delaware law. Delaware will continue to require reporting of emissions but may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation.

Except as specifically exempted by the Delaware Freedom of Information Act, 29 Del. C. Chapter 100, Delaware makes all records, reports or information obtained by the Department or referred to at public hearings available to the public pursuant to the provisions of the Delaware Freedom of Information Act, 29 Del. C. Chapter 100.

(G) §110(a)(2)(G) Requirement: Provide for authority comparable to that in section 303 and adequate contingency plans to implement such authority; ⁸7

Delaware’s SIP contains an emergency episode plan for ozone as discussed in the section 1.0 and the table thereto of this document. For the 1997 fine particulate (PM2.5) NAAQS, the emergency episode plan will be addressed in future SIP revisions. updated as required by EPA.

Delaware’s Plan: Delaware has authority comparable to that in section 303 and adequate contingency plans to implement such authority but may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation.

At present, 7 Del. C., Chapter 60 provides authority comparable to section 303 in that Delaware may seek permanent, preliminary injunctions and temporary restraining orders (7 Del. C. § 6005) and issue cease and desist orders for violations (7 Del. C. § 6018). Under 7 Del. C., § 6003, any unpermitted emission which may cause imminent or substantial danger to pubic health, safety, welfare or the environment is a violation of 7 Del. C., Chapter 60.7 Del. C. § 6003(a)(1) requires a permit from the Secretary prior to discharging any air contaminant. 7 Del. C. § 6002(2) defines air contaminant essentially as any substance other than uncombined water. 7 Del. C. § 6005 allows the Secretary to seek a preliminary or permanent injunction or temporary restraining order for any discharge of an air contaminant without a permit, and issue cease and desist orders for violations (7 Del. C. § 6018). Thus, it necessarily follows that any discharge of an air contaminant that would cause imminent & substantial endangerment to the health, safety and welfare of the people of the State of Delaware or the environment would constitute a sufficient basis for the Secretary to seek an injunction or temporary restraining order to halt the violation.

(H) §110(a)(2)(H) Requirement: Provide for revision of such plan - (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the plan is substantially inadequate to attain the national ambient air quality standard which it implements or to otherwise comply with any additional requirements established under this Act.

Delaware’s Plan: Delaware will review and revise its SIP from time to time as may be necessary to take account of revisions of such primary or secondary NAAQS or the availability of improved or more expeditious methods of attaining such standard and whenever the Administrator finds on the basis of information available to the Administrator that the plan is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements established under the CAA.

(I) §110(a)(2)(I) Requirement: In the case of a plan or plan revision for an area designated as a non-attainment area, meet the applicable requirements of part D (relating to non-attainment areas).

For the 1997 ozone and 1997 PM2.5 NAAQS, Delaware’s SIPs or recent SIP revisions already contain other elements addressing §110(a)(I) as discussed in the section 1.0 and the table thereto of this document. Many of these also apply to the fine particulate (PM2.5) NAAQS. For fine the particulate matter NAAQS, the remaining applicable requirements under Part Dwill be addressed in future SIP revisions.

(J) §110(a)(2)(J) Requirement: Meet the applicable requirements of section 121 (relating to consultation), section 127 (relating to public notification), and part C (relating to prevention of significant deterioration of air quality and visibility protection).⁹ 8

Delaware’s Plan: Delaware will meet the applicable requirements of section 121 (relating to consultation), section 127 (relating to public notification), and part C (relating to prevention of significant deterioration of air quality and visibility protection); but may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation. At present, Delaware does so utilizing the following:

For the 1997 ozone and PM2.5 NAAQS, Delaware’s SIPs already contains the other elements addressing §110(a)(J) as discussed in the section 1.0 and the table thereto of this document. For the fine particulate (PM2.5) NAAQS, any remaining applicable requirements under §110(a)(2)(J) will be addressed in future SIP revisions.

(K) §110(a)(2)(K) Requirement: Provide for - (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.

For the 1997 ozone and PM2.5 NAAQS, Delaware’s SIPs or recently submitted SIP revisions contains required modeling as discussed in the section 1.0 and the table thereto of this document. For the fine particulate (PM2.5) NAAQS, the attainment demonstration is not yet due and will be addressed in future SIP revisions.

Delaware’s Plan: Delaware will continue to perform modeling as required under the CAA to demonstrate attainment), but may makes changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation. Delaware will continue to submit the Air Quality modeling data as part of Delaware's relevant SIP submissions and through federal grant commitments or in other ways that EPA may request.

(L) §110(a)(2)(L) Requirement: Require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this Act, a fee sufficient to cover - (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under Title V.

Delaware’s Plan: In a manner consistent with Delaware law, Delaware will continue to require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this Act, a fee sufficient to cover (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under title V pursuant to Delaware law. Delaware currently fulfills this under the enabling authority of 7 Del.C. §6095 to 6099 and fee legislation that currently is renewed every three years. Delaware has a fully approved Title V operating permits program. See paragraphs (b) and (c) under “Delaware” in Appendix A to 40 CFR Part 70—Approval Status of State and Local Operating Permits Programs. Delaware may make changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation.

(M) §110(a)(2)(M) Requirement: Provide for consultation and participation by local political subdivisions affected by the plan.

Delaware’s Plan: Delaware will continue to provide for consultation and participation by local political subdivisions affected by the SIP pursuant to the public notice laws found in 7 Del.C. §6006 and 6010 and 29 Del.C. Chapters 10003, 10004 and 10115, as applicable. Furthermore, all SIP revisions undergo public notice and hearing which have allowed for comment by the public which includes local political subdivisions. We believe the public notice and hearing processes fulfill the requirements for consultation with local political subdivisions affected by the SIP.

Based on the information provided above, Delaware fully complies with the requirements of §110(a)(2)(A) through §110(a)(2)(M).