(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 2 installments, as set forth in subsection (i) of this section, during calendar years 2024, 2025, and 2026, from each source that is required to pay the annual fee as set forth in subsection (a) of this section. The annual fee for each subject source will be determined by the sum of 3 component fees: a base fee as set forth in subsection (d) of this section, a user fee as set forth in subsection (e) of this section, and a program fee as set forth in subsection (g) of this section. For any source that becomes subject to the Program after December 31, 2023, the base fee, user fee, and program fee shall be calculated as set forth in subsections (f) and (g) 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 administration of the Small Business Stationary Source Technical and Environmental Compliance Program.
(2) In calendar years 2024, 2025, and 2026, the Department will place each subject source into 1 of the following categories:
(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 2018 to 2022. 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, 2026.
(e) (1) The user fee relates to activities not identified in subsection (d) of this section for the Program, such as: administration of the 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, nitrogen oxides (NOX); particulate matter less than 10 microns (PM10); sulfur dioxides (SO2); volatile organic compounds (VOC), 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 2020 Delaware Point Source Emission Inventory of Estimated Actual Regulated Air Contaminants.
(2) In calendar years 2024, 2025, and 2026, the Department will place each subject source into 1 of the following categories:
(f) The Department shall assess a base fee that is consistent with the categories and amounts specified in subsection (d) of this section for any source that becomes subject to the Program after December 31, 2023. 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. The Department shall assess a user fee based upon allowable emissions specified in the source’s permit that is consistent with the categories and amounts specified in subsection (e) of this section for any source that becomes subject to the Program after December 31, 2023.
(g) The Department shall assess a program fee based on the source’s combined base and user fees. In calendar years 2024, 2025, and 2026, the Department will place each subject source into 1 of the following categories:
(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, 2026, 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 June 30 of each calendar year 2024, 2025, and 2026. Installment payments, due March 31 and June 30, are allowed upon written request and Department approval. A subject source is considered delinquent if payment is not received by the aforementioned due dates depending on the elected payment option. 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 or synthetic minor 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 or synthetic minor permit will be revoked for nonpayment of the fee. No permit shall be revoked without 60 days written notice or prior to 3 months past the due date for the fee. Cancellation of the permit shall not relieve the source of the obligation to pay the delinquent fees and interest. 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 administer the Program. The Secretary shall cause an internal audit of the fiscal affairs to be made each calendar year and shall incorporate the 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 via the requirements of subsection (l) of this section.
(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 an annual report, by May 1 of each year, that includes the overall program costs, the fees collected, current staffing levels, program accomplishments, and each subject source’s total hours for the preceding calendar year 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.
(m) [Repealed.]