Del. Code 7, § 6097 : Conservation — Environmental Control — Clean Air Act Title V Operating Permit Program — Fees

Current through 2016 Legislative Session, Act 399

(a) The Department shall collect an annual fee from sources that are required to obtain a Title V Operating Permit pursuant to the Title V Program and from sources who voluntarily limit their potential to emit to below Title V applicability thresholds as set forth in § 6095 of this title (i.e., a synthetic minor facility). The annual fees shall be utilized solely to pay for all direct and indirect costs required to develop, administer and implement the Program.

(b) The fee schedule must result in the collection and retention of revenues sufficient to cover the permit program costs. These costs include, but are not limited to, the costs of the following activities, as they relate to the operating permit program for stationary sources: preparing generally applicable regulations or guidance documents regarding the permit program or its implementation or enforcement; reviewing and acting on any application for a permit, permit revision or permit renewal, including the development of an applicable requirement as part of the processing of a permit or permit revision or renewal; general administrative costs of implementing the permit program, including the supporting and tracking of data; implementing and enforcing the terms of any Title V Operating Permit (not including any court costs or other costs associated with an enforcement action), including adequate resources to determine which sources are subject to the program; emissions and ambient monitoring; modeling; preparing inventories and tracking emissions; and supporting the ombudsman established pursuant to the Small Business Stationary Source Technical and Environmental Compliance Program ("SBTCP") to assist sources covered by the SBTCP in determining and meeting their obligations under the Title V Operating Permit Program.

(c) The Department shall collect annual fees, payable annually or in quarterly installments, during calendar years 2015, 2016, and 2017, from each source that is required to pay the annual fee as set forth in subsection (a) of this section. The Title V Operating Permit Program Advisory Committee may review and recommend modifications to the 2017 fee schedule should measurable operating efficiencies be gained through ongoing Title V Operating Permit Program improvement initiatives. The annual fee for each subject source will be determined by the sum of 2 component fees: a base fee and a user fee. For sources that are identified in the 2011 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants or sources that have applied for a Title V Operating Permit or synthetic minor facility permit by December 31, 2014, the base fee and the user fee shall be calculated as set forth in subsections (d) and (e) of this section. For all other sources the base fee and user fee shall be calculated as set forth in subsection (f) of this section.

(d)

(1) The base fee relates to services that are common to all sources subject to the program. These services include activities such as permit issuance and renewals; stationary source regulation development; ambient monitoring; emission inventory; control strategy development; and development, administration and implementation of 2 additional programs: the Small Business Stationary Source Technical and Environmental Compliance Program and a portion of the accidental release prevention program.

(2) In calendar years 2015, 2016, and 2017, the Department will place each subject source into 1 of the following 11 categories:

Category A Greater than 6,000 hours will pay $277,020

Category B from 5,001 to 6,000 hours will pay $108,300

Category C from 4,001 to 5,000 hours will pay $93,480

Category D from 3,001 to 4,000 hours will pay $80,940

Category E from 2,001 to 3,000 hours will pay $57,000

Category F from 1,501 to 2,000 hours will pay $42,180

Category G from 1,001 to 1,500 hours will pay $28,500

Category H from 667 to 1,000 hours will pay $18,240

Category I from 334 to 666 hours will pay $9,120

Category J from 0 to 333 hours will pay $5,700

Category K New sources that have applied for a permit after January 1, 2014 will pay $6,840.

(3) The Department's category determination pursuant to paragraph (d)(2) of this section shall be based upon 5 years' data of engineering, compliance, and enforcement hours expended for each facility from 2009 to 2013. The Department will continue to track the actual hours spent processing Title V permits and performing other related services under the Title V program. This information may be used in the evaluations of the Title V program associated with the expiration of this statute on December 31, 2017.

(e)

(1) The user fee relates to activities not identified in subsection (d) of this section for the Program, such as: development, administration, and implementation of a compliance and enforcement program; implementation and enforcement of the terms of any Title V Operating Permit or synthetic minor permit; permit revisions or amendments, including the development of an applicable requirement as part of the processing of the permit issuance, revision or amendment; the supporting and tracking of data; modeling; and adequate resources to determine which sources are subject to the Program. Such fees shall be based on the emissions of each air contaminant, in whole tons and in the aggregate, excluding carbon monoxide (CO) and particulate matter less than 2.5 microns (PM2.5), as listed in the 2011 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants.

(2) In calendar years 2015, 2016, and 2017, the Department will place each subject source into 1 of the following 10 categories:

Category 1 Greater than 2,000 tons will pay $350,000

Category 2 from 1,001 to 2,000 tons will pay $100,000

Category 3 from 501 to 1,000 tons will pay $60,000

Category 4 from 201 to 500 tons will pay $28,000

Category 5 from 101 to 200 tons will pay $12,000

Category 6 from 51 to 100 tons will pay $9,000

Category 7 from 26 to 50 tons will pay $6,000

Category 8 from 6 to 25 tons will pay $4,100

Category 9 from 0 to 5 tons will pay $3,950

Category 10 New sources that have applied for a permit after January 1, 2014 will pay $6,000.

(f) Sources not included in the 2011 Delaware Point Source Emission Inventory of Estimated Actual Regulated Air Contaminants or sources that have not applied for a Title V Operating Permit or synthetic minor facility permit by December 31, 2014, shall be assessed a base fee that is consistent with the categories and amounts specified in subsection (d) of this section. The estimated hours on which the base fee assessment is calculated shall include an evaluation of specific regulatory applicability to the source. This shall include, but is not limited to, the following: new source review; new source performance standards; toxic requirements, to include maximum achievable control technology and National Emission Standards for Hazardous Air Pollutants; and continuous emission monitoring requirements. Such sources shall also be assessed a user fee based upon allowable emissions specified in its permit that is consistent with the categories and amounts specified in subsection (e) of this section.

(g)

(1) In calendar years 2015, 2016, 2017, 2018, 2019, and 2020, the Department will grant sources with an active Title V or synthetic minor permit on or before December 31, 2014, and without delinquent accounts, annual user fee credits. The credit shall be determined by the categorical status of a qualifying facility in calendar year 2014. User fee credits for 2015, 2016, and 2017 will be calculated as a percentage of the total Program annual fee reduction amount of $300,000. Eligible facilities will be granted the following fee credit percentages by category established under paragraph (e)(2) of this section:

Category 1 Will receive a credit of 26.25% of $300,000

Category 2 Will receive a credit of 7.50% of $300,000

Category 3 Will receive a credit of 4.50% of $300,000

Category 4 Will receive a credit of 2.10% of $300,000

Category 5 Will receive a credit of 0.90% of $300,000

Category 6 Will receive a credit of 0.68% of $300,000

Category 7 Will receive a credit of 0.45% of $300,000

Category 8 Will receive a credit of 0.30% of $300,000

Category 9 Will receive a credit of 0.30% of $300,000

Category 10 Will receive a credit of 0%.

(2) The 2018, 2019, and 2020 total Program annual fee reduction amount will be reviewed and adjusted by the Title V Operating Permit Program Advisory Committee as part of the 2018 through 2020 fee negotiation cycle. Fee reduction credit will be terminated on December 31, 2020.

(h) These fees may be increased on an annual basis by no more than the Federal Consumer Price Index for the previous calendar year. Any increases in fees are subject to review and approval by the committee established pursuant to § 6099 of this title. After December 31, 2017, no fees shall be collected pursuant to this section unless authorized by a further act of the General Assembly. The Department shall consult with the Title V Operating Permit Program Advisory Committee prior to any proposed increase to the complement of full-time equivalent employees funded in whole or in part by the Program.

(i) Annual fees must be paid in full by the end of each calendar year 2015, 2016, and 2017. Any delinquent subject source shall be subject to a 2% compounding monthly interest rate for each month overdue. Each source is required to pay its annual fee. The Department has the authority to revoke a Title V permit on the sole basis that the annual fee has not been paid. Sources that have not paid their annual fee may be given notice that their Title V permit will be revoked for nonpayment of the fee. No permit shall be revoked without 60 days written notice or prior to three months past the due date for the fee. Cancellation of the permit shall not relieve the source of the obligation to pay the last year's fee. The Department shall track payment records of overdue and delinquent sources and shall document actions taken to recover delinquent fees. The Department shall include a detailed summary of delinquent facilities in the Title V Annual Status report, including the amount owed and the documented action taken by the Department to collect such fees.

(j) In determining the amount of tons of actual emissions, the Department shall not be required to include any amount of air contaminant emitted by any source in excess of 4,000 tons per year of that air contaminant. The determination of common control or common ownership shall be consistent with the requirements of 40 C.F.R. Part 70.

(k) Any funds collected under this section shall be deposited in the account as described in § 6096 of this title, shall be interest earning, and shall be used solely to develop, administer and implement the Program. The Secretary shall cause an audit of the fiscal affairs to be made annually and shall furnish a copy of such audit report together with such additional information or data with respect to the affairs as the Secretary may deem desirable to the Title V Operating Permit Program Advisory Committee.

(l) The Department will continue to track for each source the actual hours spent processing Title V permits and performing other related services under the Title V program and shall, as part of the annual fee assessment, provide each source with the number of said hours expended during the preceding year. The Division of Air Quality will develop, by May 1 of each year, the overall program costs, the fees collected, current staffing levels, program accomplishments, and each subject source's total hours for the preceding calendar year in report form and present this report at an annual meeting with the Title V Operating Permit Program Advisory Committee. The Division of Air Quality shall publish a notice announcing the availability of the report in a paper of general circulation throughout the State. Additionally, the Division shall mail a copy of said notice to the personnel on the Division of Air Quality's mailing lists.

(m)

(1) The Title V Operating Permit Program Advisory Committee shall be assembled by the Division of Air Quality to aid in the development of a management system review performed by an independent third party of the Title V air permitting scope, funding, and revenue generation process. The goal of this review will be to enhance the Division of Air Quality's existing performance initiatives to ensure that the Division of Air Quality is properly focused on the efficient and effective use of annual fees collected from affected facilities in order to sustain the requirements of the Title V Program, as well as by deploying manpower resources and technologies to optimize services, and to ensure the development of a fair, balanced, and sustainable Title V revenue generation program. The Title V Operating Permit Program Advisory Committee shall also review the proposal and scope of work and participate in the selection of the independent third party performing the review.

(2) In performing the management system review, the independent third party will:

a. Seek input from affected stakeholders;

b. Review the Department's Title V requirements and funding allocation processes;

c. Review and adhere to EPA guidance and memoranda related to annual fees;

d. Ensure that the Title V Program has the necessary resources and procedures to fulfill its mission; and

e. Recommend any technological adaptations to ensure that the Department's Title V process is right-sized for the future.

(3) The independent third party shall issue a report, objectives of which shall include:

a. How the Division of Air Quality can build upon the strength of the value stream mapping process, which is presently incorporated into the non-Title V construction and operating permit processes.

b. How the Division of Air Quality can optimize the Title V permit processing, public hearing, regulation development, air monitoring, and reporting processes.

c. How the Division of Air Quality can optimize staff levels to ensure that a viable and responsive work force is adequately trained and utilized considering employee turnover and new employee replacement hiring.

d. How the Division of Air Quality can improve the emissions inventory process to help develop a timely, sustainable, and just annual fee collection system for future years.

(4) The Division of Air Quality will begin the process to hire the independent third party to conduct the management system review by September 1, 2014. The management system review shall be targeted for completion by December 31, 2015. Study results and recommendations shall be incorporated into the next cycle of annual fee legislation development. This one-time management system review is to be funded by the existing annual fee balance with a total cost not to exceed $100,000.

Del. C. § 6097

Amended by Laws 2013, ch. 430,s 1, eff. 9/11/2014.

69 Del. Laws, c. 121, §1; 70 Del. Laws, c. 8, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 214, § 1; 73 Del. Laws, c. 318, § 1; 73 Del. Laws, c. 381, § 1; 75 Del. Laws, c. 172, §§ 1 - 5; 76 Del. Laws, c. 73, § 1; 76 Del. Laws, c. 312, § 1 - 7; 77 Del. Laws, c. 430, §§ 54, 55; 78 Del. Laws, c. 110, §§ 1 - 15.;