Recently Delaware has issued a new amendment to their Title V Operating Permit Rules (7 DE Admin Code 1130). This change was made to reflect the EPA’s new rule (88 FR 47029) which removed “emergency” affirmative defenses from Title V regulations. Once this rule was published, Delaware’s Department of Resources and Environmental Control (DNREC) amended 7 DE Admin. Code 1130 to remove all references to the emergency affirmative defenses. In addition to this change, DNREC also fixed a typographical error in Section 8 of Appendix A of the rule. 

Additionally, DNREC has recently issued proposed updates to the following rules; 7 DE Admin Codes 1104, 1105, 1109, and 1114. These changes were made after the EPA identified Delawares State Implementation Plans (SIP) as one of the 36 states whose SIPs were deemed inadequate. The SIPs were determined to be inadequate as they allowed for unregulated excess emissions during startup and shutdown events. As a result, the startup and shutdown exemptions were removed from the rules. 

On July 8, 2024, Delaware’s Department of Natural Resources and Environmental Control’s (DNREC) Air Quality division issued their finalized amendments to 7 DE Admin. Code 1130 (Title V Operating Permit Program). DNREC’s amendments were to ensure that the State’s Title V Operating Program remained consistent with the Environmental Protection Agency’s (EPA) new final rule, 88 FR 47029, which went into effect on August 21, 2023. In the EPA’s new final rule, the “emergency” affirmative defense provisions were removed from Title V regulations at the State and Federal levels. Note that per 40 CFR 70.6(g), an emergency is defined as “any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology-based emission limitation under the permit, due to unavoidable increases in emissions attributable to the emergency”. 

The emergency provisions were removed from the Title V Operating Permit Program in this new rule because the EPA had determined that they were inconsistent with the interpretation of the enforcement structure of the Clean Air Act (CAA). In order to comply with the EPA rule, all references to emergency affirmative defense provisions were removed from Code 1130. Specifically, in DNREC’s amendment, Section 6.0 (Permit Condition) of the Code was modified to remove the subsections referencing to emergency provisions (Sections 6.7 and 6.1.3.3.3.1). 

The amendment to the rule also requires that all emergency defense provisions be removed from operating permits during any subsequent renewal or revision of the permit going forward. As of January 1, 2024, 30% of Title V permits in Delaware have removed these provisions. Additionally, it is estimated that by the end of 2024 ~70% of permits will have these conditions removed. 

All the changes listed above will go into effect on August 11, 2024. It should be noted that these amendments will not change any emission limits associated with any Title V permits as the emergency provision’s sole purpose was to provide a way to negate responsibility in the case of noncompliance under certain conditions. The correction of the typographical error in Section 8 of Appendix A does not change the meaning of the condition and only makes the conditions grammatically correct.

On June 12, 2015, the EPA issued 80 FR 33840 (Startup, Shutdown, and Malfunction (SSM) SIP Call), in which Delaware was identified as one of the 36 states with inadequate State Implementation Plans (SIPs). Delaware’s SIPs: 7 DE Admin Codes 1104 (Particulate Matter Emissions from Fuel Burning Units), 1105 (Particulate Matter Emissions from Industrial Process Operations, 1109 (Emissions of Sulfur Compounds from Industrial Operations), and 1114 (Visible Emissions) were deemed inadequate as they allowed for unregulated excess emissions, due to the fact that they did not properly restrict emissions during startup and shutdown. On October 23, 2023, the EPA officially rejected Delaware’s November 16, 2016, SSM Call submittal for Codes 1104, 1105, 1109, and 1114 in 88 FR 72688. As a result of this, Delaware has proposed changes to all four of the SIP regulations to comply with the EPA’s standards for controlling excess emissions. 

To comply with 80 FR 333840, Delaware has proposed to remove the startup/shutdown exemptions in Codes 1104, 1105, 1109, and 1114, as well as the references to 30-day PM averages in Codes 1104 and 1105. In addition to these revisions, Delaware has also proposed a new visible emission limit for startups and shutdowns. This new limit (Code 1114 Section 2.2) states that visible emissions during startup and shutdown cannot exceed 40% opacity for more than 6 consecutive minutes in any 1-hour period. The opacity limits for regular operations have not changed. 

As these are proposed changes, DNREC is required to allow for public comment and to address those comments before the rules are finalized. Below is a list of ways to reach out to DNREC regarding any of the proposed changes to the SIP described.

Public Comment and Hearing

A virtual public hearing for all four proposed Codes: 1104 (Docket # 2023-R-A-0024), 1105 (Docket # 2023-R-A-0025), 1109 (Docket # 2023-R-A-0026), and 1114 (Docket # 2023-R-A-0027) will be held on Tuesday, August 27, 2024, beginning at 6 p.m.

The proposed amendment may be inspected online starting August 1, 2024 at the Delaware Regulations webpage, or in-person, by appointment only, by contacting Kelsey Pangman by phone at 302.323.4542 or by email at [email protected].

The Department will accept public comment through the close of business on Wednesday, September 11,2024. Comments will be accepted in written form via email to [email protected], or by using the online form at https://de.gov/dnreccomments, or by U.S. mail to the following address:

Theresa Smith, Hearing Officer

DNREC – Office of the Secretary

89 Kings Highway, Dover, DE 19901

If you have any questions about the finalized/proposed changes to the Delaware Code listed above, please contact the Philadelphia office at 717.829.1696 or Waverly Chen.