Skip to Page Content
Delaware.gov  |  Text OnlyGovernor | General Assembly | Courts | Elected Officials | State Agencies
 Photo: Featured Delaware Photo
 
 
 Phone Numbers Mobile Help Size Print Email

Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsOctober 2015

Table of Contents Previous Next

Authenticated PDF Version

On December 14, 2012, the United States Environmental Protection Agency (EPA) strengthened the National Ambient Air Quality Standards (NAAQS) for the pollutant fine particulate matter (PM2.5), by adding a new standard of 12 micrograms per cubic meter. Section 110(a)(1) of the CAA requires States to submit to the EPA a State Implementation Plan (SIP) that provides for implementation, maintenance, and enforcement of a newly promulgated or revised NAAQS. Section 110(a)(2) lists the elements that are to comprise the implementation plan, which include basic program elements such as enforceable emission limitations and control measures, air quality monitoring and modeling, a permitting program, adequate funding and personnel, authority under state law to carry out the plan, emissions reporting, emergency powers, public participation, and fee collection. Because there have been NAAQS in existence since 1997 that cover the pollutant PM2.5, the CAA 110 requirements are already substantially addressed in Delaware’s SIP. The SIP document being developed under this action discusses how Delaware’s SIP meets each requirement of Section 110(a)(2)(A)-(M) of the CAA for the 2012 PM2.5 NAAQS.
On December 14, 2012, the Environmental Protection Agency (EPA) promulgated a new National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM2.5) at a level of 12.0 micrograms per cubic meter (mg/m3) annual arithmetic mean concentration.1 Pursuant to sections 110(a)(1) and 110(a)(2) of the Clean Air Act (CAA), each state is required to submit to the EPA a State Implementation Plan (SIP) to provide for the implementation, maintenance, and enforcement of a newly promulgated or revised NAAQS.2 This SIP revision fulfills this requirement relative to the 2012 PM2.5 NAAQS.
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 CAA, specifically, CAA §110(a)(2), relative to the 2012 PM2.5 NAAQS. 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 the 2012 PM2.5 NAAQS is being implemented, maintained and enforced. In Appendix A of this document Delaware provides a technical demonstration of how it meets CAA § 110(a)(2)(D)(i)(I) requirements. 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)(1) and (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 law3, which gives the Delaware Department of Natural Resources and Environmental Control (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 2012 PM2.5 NAAQS are already contained in Delaware’s SIP. The following Table identifies those SIP provisions. The following Table also identifies those infrastructure requirements which are not applicable to Delaware.
For the 2012 PM2.5 NAAQS, the following emission limitations and schedules contained in Delaware’s approved SIP.
7 DE Admin. Code 11011, Definitions And Administrative Principles
7 DE Admin. Code 1108, Sulfur Dioxide Emissions From Fuel Burning Equipment
7 DE Admin. Code 1110, Control of Sulfur Dioxide Emissions Kent And Sussex Counties
7 DE Admin. Code 1145, Excessive Idling Of Heavy Duty Vehicles,
7 DE Admin. Code 1146 Electric Generating Unit (EGU) Multi-Pollutant Regulation

1

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 for the 2012 PM2.5 NAAQS. 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, to include the requirements associated with the 2012 PM2.5 NAAQS. See Table 1-1 under section 110(a)(2)(A). On June 12, 2015 (80 FR 33840), EPA finalized a SIP Call which identifies several provisions from many states which EPA asserts are substantially inadequate for CAA sections 302 and 110 purposes. Some provisions are inadequate for inappropriate emission exemptions, some for affirmative defenses, and some for director discretion. One of the state SIPs which contains these identified provisions is Delaware. Some of the provisions identified by Delaware for CAA section 110(a)(2)(A) for this SIP for 2012 PM2.5 NAAQS are included in the SIP Call. Delaware intends to respond to the SIP Call within the timeframe provided by EPA and the CAA. However, Delaware does not believe its response to the SIP Call for the identified provisions affects Delaware’s conclusion that its SIP contains enforceable emission limitations and other control measures as are necessary and appropriate to meet applicable requirements of the CAA. Delaware’s current status of the 2012 PM2.5 and 1997/2006 PM2.5 NAAQS are attainment. Delaware’s response to the SIP Call will be done in such a way to ensure Delaware continues to have sufficient provisions for CAA section 110 including enforceable measures to ensure the SIP meets requirements in 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 2012 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 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 make changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation. At present, Delaware does this as follows for the 2012 PM2.5 NAAQS:
In order to keep EPA informed of changes to the sampling network Delaware provides EPA Region III with prior notification of any planned changes to the network. As needed, details of these changes and anticipated approvals of the changes are communicated to EPA. On an annual basis, Delaware sends EPA a monitoring network plan as required by 40 CFR Part 58 Section 10: Annual monitoring network plan and periodic network assessment. This plan contains all required information including site and monitor description, analysis methods, operating schedule, monitoring objectives and scale of representativeness, as well as information on any planned changes. Delaware submits data to the AQS system, in a timely manner, pursuant to the schedule prescribed by the 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.
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, through its Division of Air Quality, 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 4 and 115 5 (relating to interstate and international pollution abatement).
Delaware’s Plan: Delaware’s SIP presently contains adequate provisions prohibiting sources from emitting air pollutants in amounts which will contribute significantly to non-attainment or interfere with maintenance with any NAAQS, to include the 2012 PM2.5 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:
110(a)(2)(D)(i)(I): In December, 2013 Delaware recommended to the USEPA that all of Delaware be designated attainment for PM2.5 based on Delaware’s ambient monitoring network and the evaluation of impacts on neighboring states.6 Delaware and the surrounding states of Maryland and New Jersey do not have any PM2.5 nonattainment areas. Pennsylvania has determined that nonattainment for PM2.5 in nearby Delaware County is caused by local, not regional, sources.7 In August, 2014 Delaware received EPA’s response letter which said that Delaware’s air quality data “do not indicate any violation of the 2012 annual PM2.5 NAAQS in Delaware or contribution to any nearby area.” Accordingly, EPA designated the entire State of Delaware as “unclassifiable/attainment” on January 15, 2015 (80 FR 2206). This reaffirms EPA’s conclusion that Delaware does not contribute to downwind areas. See Appendix A, “Demonstration of Adequate Provisions in SIP (CAA § 110(a)(2)(D)(i)(I))”
(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 128,8 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.
Delaware’s Plan: For §110(a)(2)(E)(i), Delaware has adequate authority under state law pursuant to 7 Del.C. Chapter 60 to carry out its SIP obligations with respect to the 2012 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.
(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-data 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; 9 
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.
(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).
Delaware’s Plan: This does not apply because no part of Delaware is designated nonattainment for the 2012 PM2.5 NAAQS.
(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).10
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:
7 DE Admin. Code 1132, Transportation Conformity, provides a legal platform for the various consultation procedures that have been developed between DNREC, DELDOT, and the Metropolitan Planning Organizations (MPOs). The MPOs provide a forum for consultation with local governments. Delaware’s MPOs are: WILMAPCO, Kent County MPO, and the Salisbury-Wicomico MPO. Regional planning organizations provide the forum for inter-state consultations. Additionally, consultations with Federal Land Managers are on-going in accordance with EPA Rules. All SIP revisions and new/amended regulations undergo public notice and hearing, pursuant to 7 Del.C. Chapters 29 and 60, which include publication in the newspapers and in the Delaware Register, and which have allowed for comment by the both the public and local political subdivisions. Delaware believes the public notice and hearing processes also fulfills the section 121 consultation process. The submitted attainment plans and regulations in the approved Delaware SIP specify the organizations responsible for implementing and enforcing the plans.
PSD requirements necessary to implement the 2012 PM2.5 NAAQS are SIP approved and implemented through the requirements of 7 DE Admin. Code 1125, Preconstruction Review.
With regard to visibility protection, there are no new applicable visibility protection obligations under section 110(a)(2)(J) as a result of the 2012 PM2.5 NAAQS. Delaware is complying with, and will continue to comply with the visibility protection and regional haze program requirements under Part C of the CAA. EPA approved the regional haze SIP on July 19, 2011 (76 FR 42557). EPA also approved the “5-Year Progress” regional haze SIP on May 5, 2014 (79 FR 25506).
(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.
Delaware’s Plan: Delaware has the authority and capability to conduct air quality modeling in order to assess the effect on ambient air quality of relevant pollutant emissions, and will continue to perform modeling as necessary, but may make changes that it believes in its discretion are appropriate, while continuing to fulfill this obligation. Delaware will continue to submit to the EPA the Air Quality modeling data as part of Delaware's relevant SIP submissions, permit actions,11 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. The public notice and hearing processes fulfill the requirements for consultation with local political subdivisions affected by the SIP.

1

2

3
Referred to in this document as “7 Del. C.” followed by the specific section citation (e.g., §6005).

4
§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.

5

6
All air quality monitors in the State of Delaware are recording ambient PM2.5 air quality data which are substantially below the annual NAAQS (i.e., 2012-2014 data show the highest 3-year design value (DV) is 9.8 ug/m3 in New Castle county, while Kent and Sussex counties’ DVs are both below 8.5 ug/m3).

7

8

9
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.

10

11

Last Updated: December 31 1969 19:00:00.
site map   |   about this site   |    contact us   |    translate   |    delaware.gov