DEPARTMENT OF natural resources and environmental control

Division of Air and Waste Management

FINAL

Secretary’s Order No.: 2008-A-0034

Date of Issuance: August 11, 2008

Effective Date of the Amendment: September 11, 2008

I. Background

On Thursday, July 31, 2008, a public hearing was held in the Priscilla Building Conference Room of DNREC in Dover to receive public comment on a proposed revision to the State Implementation Plan (SIP) regarding administrative and non-substantive changes to Delaware’s Regulations Governing the Control of Air Pollution. The purpose of this SIP revision is to make the necessary administrative changes in all existing Delaware SIP regulations so that the language uses and the styles are all consistent with Delaware’s Administrative Code for drafting regulations, to wit: the Delaware Manual for Drafting Regulations (March 2006 edition). Some additional non-substantive changes and corrections of existing clerical errors have been proposed to these SIP regulations by the Department at this time as well.

It should be pointed out that the aforementioned administrative changes are completely non-substantive, and that these changes, along with the correction of clerical errors as noted above, do not alter the regulatory features of any existing individual SIP regulations (i.e., effective dates, regulatory limits and/or requirements, compliance schedules, enforcement procedures, etc.).

No public comment regarding these proposed revisions to the SIP regulations were received by the Department, either during the pre-hearing phase of this matter or at the public hearing itself on July 31, 2008, nor were any members of the public present at said hearing. Proper notice of the hearing was provided as required by law.

After the hearing, the Department performed an evaluation of the evidence entered into the record in this matter. Thereafter, the Hearing Officer prepared her report and recommendation in the form of a Hearing Officer’s Report to the Secretary dated August 7, 2008, and that Report is expressly incorporated herein by reference.

II. Findings and Conclusions

On the basis of the record developed in this matter, it appears that the Air Quality Management Section of the Department has provided a sound basis for the aforementioned proposed revisions to Delaware’s State Implementation Plan (SIP) and the SIP regulations. Based upon the public record, I agree that the proposed revisions, which are administrative and non-substantive in nature, should be approved as the Department’s final plan at this time, as reflected in the Hearing Officer’s Report of August 7, 2008, which is attached and expressly incorporated into this Order.

Moreover, the following findings and conclusions are entered at this time:

The Department has jurisdiction under its statutory authority to make a determination in this proceeding.

The Department provided adequate public notice of the proceeding and the public hearing in a manner required by the law and regulations.

The Department held a public hearing in a manner required by the law and regulations.

Delaware’s SIP Regulations Governing the Control of Air Pollution, as a result of having been developed by the Department over a long period of time (approximately 40 years), have adopted different coding and numbering methods and styles. These variances have resulted in confusion and misunderstandings when updating the same.

Adoption of the proposed administrative and non-substantive revisions to all of Delaware’s existing SIP Regulations will result in uniform language use and style consistent with the Delaware Administrative Code for drafting regulations, to wit: the Delaware Manual for Drafting Regulations (March 2006 edition).

The adoption of the proposed SIP revisions, which are strictly administrative and non-substantive in nature, will not alter any regulatory features of any existing individual SIP regulations, such as effective dates, regulatory limits and/or requirements, compliance schedules, enforcement procedures, etc.

Moreover, the adoption of the proposed SIP revisions to correct the clerical errors present in Delaware’s current SIP regulations will provide better clarity and a fuller understanding of the regulatory language contained within all existing SIP regulations to the general public and the regulated community.

The Department has an adequate record for its decision, and no further public hearing is appropriate or necessary;

The Department’s proposed revisions to Delaware’s current SIP regulations, as published in the July 1, 2008 Delaware Register of Regulations and set forth within Attachment “A” hereto, are adequately supported, not arbitrary or capricious, and consistent with the applicable laws and regulations. Consequently, it should be approved as final, and shall go into effect ten days after its publication in the next available issue of the Delaware Register of Regulations;

The Department shall submit the revised regulations as final regulations to the Delaware Register of Regulations for publication in its next available issue, and shall provide written notice to the persons affected by the Order.

III. Order

It is hereby ordered that the Department’s aforementioned proposed revisions to Delaware’s State Implementation Plan and its SIP regulations be made, and that the proposed revisions be promulgated in final form, in accordance with the customary and established rule-making procedure required by law.

IV. Reasons

The revisions to Delaware’s SIP regulations with respect to the administrative and non-substantive changes needed at this time will not alter the regulatory features of any existing individual SIP regulation, and will bring Delaware’s current SIP regulations into accordance with the Delaware Administrative Code, “Manual for Drafting Regulations (March 2006). Furthermore, this promulgation will provide better clarity and a fuller understanding of the regulatory language contained within all existing SIP regulations to the general public and the regulated community, in furtherance of the policy and purposes of 7 Del.C., Ch. 60.

John A. Hughes, Secretary

Delaware State Implementation Plan: Administrative and Non-Substantive Changes in Regulations Governing the Control of Air Pollution

Submitted To

U.S. Environmental Protection agency

By

Delaware Department of Natural Resources and Environmental Control

[July September] 2008

Acronym List

AQM - Air Quality Management

AQMS - Air Quality Management Section of DNREC

CAA - Clean Air Act

CAAA - Clean Air Act Amendments of 1990

CFR - Code of Federal Regulations

DAWM - Division of Air and Waste Management of DNREC

DNREC - Delaware Department of Natural Resources and Environmental Control

EPA - United States Environmental Protection Agency

FR - Federal Register

NAAQS - National Ambient Air Quality Standard

NOx - Nitrogen Oxides

SIP - State Implementation Plan

VOC - Volatile Organic Compound

1.1 Background

In the past three decades or so, Delaware has developed 48 regulations for ambient air quality management. Under Section 110 of the Clean Air Act (CAA), an air quality management (AQM) regulation, when relied upon to attain or maintain the national ambient air quality standards (NAAQSs), must go through public review-comment and hearing process, and then be submitted to US Environmental Protection Agency (EPA) for approval as a state implementation plan (SIP) revision.

Title 29, Chapter 101 of the Delaware Code (29 Del.C., Ch 101) requires that regulatory agencies in Delaware develop and adopt regulations, and publish the regulations in the Delaware Register of Regulations through the Registrar’s Office under Division of Research of the General Assembly. The Registrar’s Office has developed guidelines and drafting manuals for Delaware regulations. The latest edition of drafting and style manual, entitled “Delaware Manual for Drafting Regulations,” was issued as Delaware Administrative Code in March 2006 (see Appendix A of this document, hereafter referred to as “the 2006 drafting manual” or simply as “the 2006 Manual”).

Since the 2006 drafting manual was issued, several Delaware AQM regulations have been formatted to comply with the standards specified in the manual. However, a majority of the Delaware AQM regulations have not been updated.

1.2 Purpose and Scope

Among the 48 Delaware AQM regulations, 32 regulations have been approved by EPA as Delaware state implementation plan (SIP) revisions, and are listed in 40 CFR Part 52 Subpart I (hereafter referred to as SIP regulations). They are:

[* Indicating a regulation (or a section or sections therein) that has been revised after the issuance of the 2006 drafting manual. The prefix of “11” in “11##” in a regulation title number represents Delaware administrative code for Air Quality Management Section. See 2.2 of this SIP revision.]

In addition, the following regulations have been submitted to EPA as SIP revisions and pending EPA’s approvals:

The purpose of this SIP revision is to make all Delaware SIP regulations (i.e., both listed and not-yet listed in 40 CFR Part 52 Subpart I) consistent with the 2006 Manual. In addition, some non-substantive changes and corrections of errors have been made. Exclusively for this SIP revision:

The above changes are made on the current AQM regulations, and reflected by “strikeouts” for deletions and “underlines” for additions, as required by the 2006 Manual. After the above changes are made, the regulations and relevant terms (languages, codes, styles, formats, etc.) are defined as being “revised” in this SIP revision. All revised SIP regulations are presented in Appendix B of this SIP revision.

It should be pointed out that the administrative changes, non-substantive changes and corrections of errors do not alter regulatory features of individual regulations, such as effective date, applicability, regulatory limit and requirement, compliance schedule, enforcement procedures, etc.

1.3 Exclusions

The following five SIP regulations (or sections) are not included in this SIP revision:

Regulations 31 and 41 (Section 2) are not included because they are currently under substantive revision. Regulation 1142 (Section 2) is not included because it is under consideration for revision. The administrative and non-substantive changes in those regulations (or sections) will be made in their revisions. Regulation 37 is not included because it expired in 2002.

Although the above regulations are not included in this SIP revision, they shall be referenced in the future under the new title code of “7 DE Admin Code 1100.” For example, Regulation 31 will be referenced as “7 DE Admin Code 1131”, instead “Regulation 31.” The new title codes and numbers are used for consistency purpose. See discussions in 2.2 and 2.5 of this SIP document.

Many current AQM regulations have citations of the federal laws and documents (such the Clean Air Act, the Federal Register, and the Code of Federal Regulations). Some regulations contain appendixes that are adopted directly from federal documents, and documents of other state agencies, or other sources. The administrative changes, non-substantive changes and corrections under this SIP revision do not apply to contents of those citations and the appendixes directly from the aforementioned other sources.

1.4 Non-SIP Regulations

The following AQM regulations are not included in 40 CFR Part 52 Subpart I list, but have been adopted by Delaware to deal with air quality issues not directly related to NAAQSs:

The above regulations are not considered as Delaware SIP regulations. Therefore, they are not included in this SIP revision, although the administrative and non-substantive changes in those regulations are conducted along with this SIP revision for consistency purposes. Delaware Registrar’s Office is in charge of updating those regulations under 29 Del.C., Ch 1134. The [proposed] revisions of those non-SIP regulations can be reviewed at:

http://regulations.delaware.gov/AdminCode/title7/1000/1100/index.shtml#TopOfPage

Comments on those non-SP regulations can be addressed to Jeffrey Hague, Registrar of Regulations, Delaware Legislative Council, at e-mail address Jeffrey.Hague@state.de.us, or sent to Office of Registrar of Regulations, P.O. Box 1401, Dover, DE 19903.

1.5 Responsibility and Contacts

The agency with direct responsibility for preparing and submitting this SIP revision is Delaware Department of Natural Resources and Environmental Control (DNREC), Division of Air and Waste Management (DAWM), Air Quality Management Section (AQMS), under Section Administrator, Ali Mirzakhalili. The working responsibility for Delaware air quality planning and regulation development falls within AQMS’ Planning Branch, under Program Manager Ronald A. Amirikian. Frank F. Gao, Ph.D. and P.E., of the Planning Branch, is the project leader and principal author of this SIP revision. Questions and comments should be addressed to either Ronald A. Amirikian at (302)739-9402 or Ronald.Amirikian@state.de.us, or to Frank F. Gao at (302)323-4542 or Frank.Gao@state.de.us, or sent to AQMS, 156 South State Street, Doer, DE 19901.

2.1 Font Face and Size

The 2006 Manual specifies that all Delaware regulations be drafted in Arial font face and 12-point font size. Accordingly, all AQM SIP regulations are converted to Arial font face and 12-point font size under this SIP revision. This font-change is not reflected with strikeouts and underlines in the revised regulations, since such change does not alter any meaning of the subject regulations in any aspect.

2.2 Regulation Title Coding and Numbering

Historically, Delaware AQM regulations have been grouped in “Delaware Regulations Governing the Control of Air Pollution,” and numbered from 1 to 48 (Arabic numbers) without an indentifying or administrative code. Under the current Delaware administrative coding system, all AQM regulations should be under “Title 7 DNREC, 1100 Air Quality Management Section” and be coded with four digits in a format of “11##”, where the first two digits “11” specify “AQMS” and the second two digits “##” are the regulation numbers. According to this requirement, titles of all Delaware AQM regulations are recoded as follows, using Regulation No. 1 as an example, with strikeouts representing deletions and underlines for additions:

Title 7 DNREC

1100 Air Quality Management Section

REGULATION NO. 1

1101 DEFINITIONS AND ADMINISTRATIVE PRINCIPLES

Under this SIP revision, all revised regulations use a bold-face text for their titles. In case that a current title used a regular-face text, this regular-to-bold change is not indicated by using strikeouts and underlines, since such change does not alter any meaning of the title in any aspect.

2.3 Format of Definitions

Various formats for definitions of terms have been used in Delaware AQM regulations. According to the 2006 Manual, the following format has been adopted as a standard format in all AQM regulations under this SIP revision, using “heat input” as an example, with strikeouts representing deletions and underlines for additions:

“Heat input” HEAT INPUT: The means the potential thermal energy resulting from the complete combustion of any fuel.

In some regulations, such as in Regulation No. 12, the terms to be defined are not bolded, but are in the standard format already. In those cases, the change from un-bolded terms to bold-face terms are not identified by strikeouts and underlines, since such change does not alter any meaning of the terms themselves and definitions that follow.

2.4 Section and Subsection Numbering

According to the format provided in the 2006 Manual, two changes are made with respect to sections in a regulation under this SIP revision: (1) All prefixes of “Section-” in section title lines are deleted; (2) Sections are numbered using a consistent format of Arabic numeral “#.0”.

A majority of the current AQM regulations have subsections of various levels, and use different symbols for subsections, such as lower-case letters (a, b,…), Roman numbers (i, ii,…), Arabic numbers in parenthesis [(1), (2), … ], upper-case letters (A, B, …), and paired lower-case letters (aa, bb, …). According to the format provided in the 2006 Manual, all those subsection symbols in the current AQM regulations are replaced by Arabic numbers under this SIP revision.

The following is an example from Regulation 24, demonstrating changes in numbering of sections and subsections, with strikeouts representing deletions and underlines for additions:

Section 4 -

4.1 a. To establish the records…

4.2 b. Requirements for coating sources…

4.2.1 1. Certification. By November 15, 1993, the owner or operator of a facility… by providing all of the following:

4.2.1.1 i. The name and location of the facility.

4.2.1.2 ii. The address and…

According to the format provided in the 2006 Manual, the bold-face is adopted for section titles in all revised regulations. In those cases where a regular-to-bold face change is made, the change is not identified by strikeouts and underlines, since such change does not alter any meaning of the section title in any aspect.

2.5 Citations in Regulations

According to the 2006 Manual, all AQM regulations should be cited as Delaware Administration Code by title and regulation number (for code titles and numbers, see 2.2 of this SIP revision). Therefore, citations of another regulation are revised to the following standard format, using an excerpt from Regulation No. 2 as an example, with strikeouts representing deletions and underlines for additions:

… in an operation permit issued pursuant to Regulation No. 30 7 DE Admin. Code 1130.

In several AQM regulations, Delaware’s solid waste regulation is cited. According the 2006 Manual, and the latest version of that regulation, the citation is changed to:

…the Solid Waste Regulations 7 DE Admin. Code 1301, Regulations Governing Solid Waste.

Another common citation in the AQM regulations is the Delaware Code. According to the 2006 Manual, the following standard format is adopted in all AQM regulations under this SIP revision, using Title 29 of Delaware Code, Chapter 80 as an example:

…as defined in 29 Del.C., Ch 80 …

In cases where an un-bolded “Del.C.” is changed to a bold “Del.C.”, the strikeouts and underlines (i.e., Del.C. Del.C.) are not used in the revised regulations, since such change does not alter any meaning of the subject in any aspect. In addition, the symbol “§” is used when a section of the Delaware Code is cited.

2.6 Other Changes

Based on the specifications in the 2006 Manual, the following changes are also made in all AQM regulations under this SIP revision, with strikeouts representing deletions and underlines for additions:

2.6.1 Changing “and/or” to “or”.

Example: …previous permit and/or application...

2.6.2 Changing “word(s)” to “word or words”.

Example: … control device(s) or devices…

2.6.3 Spelling out numbers from 1 to 9, except those followed by specifying symbols such as %, oC, oF, and those used for special terms such as “the 1-hour ozone standard.” However, numerals between 1.0 and 9.0 are not spelled out, due to the precision meaning held by the decimal place.

2.6.4 Using Arabic numbers for 10 and greater, except when used at the beginning of a sentence.

2.6.5 Changing word “percent” following a numeral to “%”.

Examples for the above three changes include:

… 3 three years after the effective date …

… 5 percent % of the emissions …

… twenty percent 20% of the emissions …

2.6.6 Change “deg C and deg F” to “oC and oF”, respectively.

Example: …at 343 deg. C oC (650 deg. F oF) or higher …

2.6.7 Change dates in the text, for example, from “12/02/94” to “December 2, 1994.”

This change is made according to the 2006 Manual. For those dates in front of a section title line, see 3.4 of this SIP revision.

3.1 Addition and Deletion of Words

3.1.1 Additions

In a current AQM regulation, its sections and subsections may be referenced frequently in the regulation itself. In addition, the federal Clean Air Act (the Act) may be cited frequently as well. To ensure precise citations and references, the terms “of (or in) this regulation” and “of (or in) the Act” are added wherever they seem necessary and adequate. See examples in 3.1.2 of this SIP revision.

3.1.2 Deletions

In the current regulations, terms such “section, subsection, part, subpart, paragraph, and subparagraph” are used extensively, but not consistently and properly. For example, the term “section” is used to denote not only sections, but oftentimes subsections and even sub-subsections. In addition, the term “paragraph” is used for sections and subsections which contain multiple paragraphs. Under this SIP revision, terms “section, subsection, part, subpart, paragraph, and subparagraph” are no longer used in front of section or subsection numbers. Examples include:

…pursuant to section 5(a)(i)(1)A 5.1.1.1.1 of this regulation…

(See also 2.4 of this SIP revision.)

... to meet the requirements of Section 112(i)(1) of the Act…

(See also 1.3 of this SIP revision.)

3.1.3 Deleting Specific Section and Subsection Numbers

There are cases in the current regulations where there is only one subsection in a section. This single subsection is no longer numbered under this SIP revision. See example below, where “6.1” is deleted since it was to denote a single subsection in Section 6.

Section 6 –

6.0 RACT PROPOSALS

6.1 The RACT proposal submitted in accordance with…

3.2 Changing Italic Font Style to Regular Style

In some current regulations, the italic font is used for the purpose of identifying terms that are defined in the subject regulations. In other regulations, the italic font is used for other purposes, such as emphasis. Under this SIP revision, the italic font is no longer used. This change is not indicated by strikeouts and underlines (e.g., emissions emissions) in the revised regulations, since such change does not alter any meaning of the terms themselves and their contexts in any aspect.

3.3 Renumbering Tables and Equations

Tables or equations in the current AQM regulations are numbered in various ways. Under this SIP revision, a standard format of “X-Y” is adopted for all tables and equations, with X denoting a section and Y denoting table or equation order in that section. For example, the following changes are made in Section 7 of Regulation 17 and Section 1 of Regulation 41, for table number and equation number, respectively:

TABLE 7.2 – 1 7-1. ESTIMATED EMISSIONS METHOD CODE

1.6.1.1 … Determine the VOC content using equation 1-1 as follows:

When tables or equations appear in an appendix, they are also numbered with the standard format of “X-Y”, where X denoting the appendix (A, B, …etc. See 3.5 of this SIP revision) and Y denoting table or equation order in the appendix. For example, the 3rd equation in Appendix A is numbered as “A-3”.

3.4 Dates Associated with Section Titles

Historically, all Delaware AQM regulations have placed a date, in the format of “mm/dd/yy” or “mm/dd/yyyy,” immediately in front of or after a section title, indicating the date when the subject section was adopted in its latest version. Those dates are mainly for record purpose. It is oftentimes necessary to revise or update only individual section or sections, but not the whole regulation. Therefore, new requirements and supporting data are reflected only in the newly-adopted section or sections. It is determined, under this SIP revision, that those dates are maintained in all AQM regulations, in a consistent format of “mm/dd/yyyy.”

3.5 Appendixes

3.5.1 Numbering Appendixes

Appendixes in a regulation are numbered using capital letters (A, B, …) under this SIP revision. In Regulation 24, the current appendixes are numbered with capital letters in double quotation marks (e.g., Appendix “A”). All appendixes in Regulation 24 are renumbered with un-quoted capital letters under this SIP revision, without strikeouts and underlines (e.g., “A” A).

In addition, all appendixes of AQM regulations are identified using bold-face (i.e., Appendix) under this SIP revision, to distinguish them from appendixes of other documents cited in the AQM regulations.

3.5.2 Footnotes in Appendixes

According to the 2006 Manual, footnotes should be presented at the end of a regulation. For appendixes, however, footnotes are placed at the end of each appendix under this SIP revision. For example, footnotes used in an appendix of Regulation 24 are presented at the end of the subject appendix, instead of at the far end of the entire regulation.

3.5.3 References in Appendixes

References in an appendix are no longer denoted by superscripts (i.e., 1, 2,…) under this SIP revision. Instead, a directing text in parenthesis “(see # of this appendix)” is used, where “#” is the order number of the reference listed at the end of the appendix.

3.6 Other Changes

Other non-substantive changes are made under this SIP revision, mainly for consistency and clarification purposes. The changes are indicated by strikeouts and underlines, and are self-explanatory. The following is an example:

12.8 through 12.10 [Reserved]

12.8 [Reserved]

12.9 [Reserved]

12.10 [Reserved]

Correction of errors under this SIP revision is self-explanatory. For example, the following correction is made in 2.3 of Regulation 9:

…shall not apply… to petroleum storage and transfer facilities.

Examples of other self-explanatory corrections under this SIP revision include:

Correcting “CO2” to “CO2”;

Correcting “cm3” to “cm3”;

Correcting “the 31st” to “the 31st”.

The above superscript or subscript corrections are not indicated with strikeouts and underlines in this SIP revision, since such corrections do not alter any meaning of the subjects in any aspect.

A. Delaware Manual for Drafting Regulations, March 2006 Edition, Registrar’s Office, Division of Research of the General Assembly, Dover, DE. Available at

http://regulations.delaware.gov/documents/drafting&stylemanual.pdf

B. Collection of Revised Delaware SIP Regulations. Available at

[http://regulations.delaware.gov/register/july2008/proposed/index.shtml#TopOfPage

http://regulations.delaware.gov/register/september2008/final/index.shtml#TopOfPage]

Under: DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL