§ 72-0303 — Operating permit program fees

§ 72-0303. Operating permit program fees.\n * 1. Commencing January first, two thousand fifteen and every year\nthereafter, all sources of regulated air contaminants identified\npursuant to subdivision one of section 19-0311 of this chapter shall\nsubmit to the department an annual base fee of two thousand five hundred\ndollars. This base fee shall be in addition to the fees listed below.\nCommencing January first, nineteen hundred ninety-four and every year\nthereafter all sources of regulated air contaminants identified pursuant\nto subdivision one of section 19-0311 of this chapter shall submit to\nthe department an annual fee not to exceed the per ton fees described\nbelow. The per ton fee is assessed on each ton of emissions up to seven\nthousand tons annually of each regulated air contaminant as follows:\nsixty dollars per ton for facilities with total emissions less than one\nthousand tons annually; seventy dollars per ton for facilities with\ntotal emissions of one thousand or more but less than two thousand tons\nannually; eighty dollars per ton for facilities with total emissions of\ntwo thousand or more but less than five thousand tons annually; and\nninety dollars per ton for facilities with total emissions of five\nthousand or more tons annually. Such fee shall be sufficient to support\nan appropriation approved by the legislature for the direct and indirect\ncosts associated with the operating permit program established in\nsection 19-0311 of this chapter. Such fee shall be established by the\ndepartment and shall be calculated by dividing the amount of the current\nyear appropriation from the operating permit program account of the\nclean air fund by the total tons of emissions of regulated air\ncontaminants that are subject to the operating permit program fees from\nsources subject to the operating permit program pursuant to section\n19-0311 of this chapter up to seven thousand tons annually of each\nregulated air contaminant from each source; provided that, in making\nsuch calculation, the department shall adjust their calculation to\naccount for any deficit or surplus in the operating permit program\naccount of the clean air fund established pursuant to section\nninety-seven-oo of the state finance law; any loan repayment from the\nmobile source account of the clean air fund established pursuant to\nsection ninety-seven-oo of the state finance law; and the rate of\ncollection by the department of the bills issued for the fee for the\nprior year.\n Notwithstanding the provisions of the state administrative procedure\nact, such calculation and fee shall be established as a rule by\npublication in the Environmental Notice Bulletin no later than thirty\ndays after the budget bills making appropriations for the support of\ngovernment are enacted or July first, whichever is later, of the year\nsuch fee will be effective. In no event shall the fee established herein\nbe any greater than the maximum fee identified pursuant to this section.\n * NB Effective until January 1, 2027\n * 1. Commencing January first, two thousand twenty-seven and every\nyear thereafter, all sources of regulated air contaminants identified\npursuant to subdivision one of section 19-0311 of this chapter shall\nsubmit to the department an annual base fee of eight thousand five\nhundred dollars per facility. This base fee shall be in addition to the\nfees listed below. Commencing January first, two thousand twenty-seven\nand every year thereafter, all sources of regulated air contaminants\nidentified pursuant to subdivision one of section 19-0311 of this\nchapter shall submit to the department an annual fee not to exceed the\nper ton fees described below. The per ton fee is assessed on each ton of\nemissions of each regulated air contaminant as follows: two hundred\ndollars per ton for facilities with total emissions less than one\nthousand tons annually; two hundred twenty-five dollars per ton for\nfacilities with total emissions of one thousand or more but less than\ntwo thousand tons annually; two hundred fifty dollars per ton for\nfacilities with total emissions of two thousand or more but less than\nfive thousand tons annually; and three hundred dollars per ton for\nfacilities with total emissions of five thousand or more tons annually.\nSuch fees shall be sufficient to support an appropriation approved by\nthe legislature for the direct and indirect costs associated with the\noperating permit program established in section 19-0311 of this chapter.\nSuch fees shall be established by the department and shall be calculated\nby dividing the amount of the current year appropriation from the\noperating permit program account of the clean air fund by the total tons\nof emissions of regulated air contaminants, including hazardous air\npollutants, that are subject to the operating permit program fees from\nsources subject to the operating permit program pursuant to section\n19-0311 of this chapter; provided that, in making such calculation, the\ndepartment shall adjust their calculation to account for any deficit or\nsurplus in the operating permit program account of the clean air fund\nestablished pursuant to section ninety-seven-oo of the state finance law\nand the rate of collection by the department of the bills issued for the\nfees for the prior year.\n Notwithstanding the provisions of the state administrative procedure\nact, such calculation and fees shall be established as a rule by\npublication in the Environmental Notice Bulletin no later than thirty\ndays after the budget bills making appropriations for the support of\ngovernment are enacted or July first, whichever is later, of the year\nsuch fees will be effective. In no event shall the fees established\nherein be any greater than the maximum fee identified pursuant to this\nsection.\n * NB Effective January 1, 2027\n * 2. Bills issued for the fee shall be based on actual emissions for\nthe prior calendar year, as demonstrated to the department's\nsatisfaction, or in the absence of such demonstration, on permitted\nemissions, or, where there is no permit, on potential to emit. Persons\nrequired to submit an emissions statement to the department shall use\nsuch statement to demonstrate actual emissions under this section.\n * NB Effective until January 1, 2027\n * 2. Bills issued for the fees established by subdivision one of this\nsection shall be based on actual emissions for the prior calendar year,\nas demonstrated to the department's satisfaction, or in the absence of\nsuch demonstration, on permitted emissions, or, where there is no\npermit, on potential to emit. Persons required to submit an emissions\nstatement to the department shall use such statement to demonstrate\nactual emissions under this section.\n * NB Effective January 1, 2027\n 3. Effective January first, nineteen hundred ninety-seven through\nDecember thirty-first, nineteen hundred ninety-eight, and\nnotwithstanding the requirements of the state administrative procedure\nact, the cap of twenty-five dollars per ton shall increase by the\npercentage, if any, by which the consumer price index exceeds the\nconsumer price index for the calendar year nineteen hundred eighty-nine.\n a. The consumer price index for any calendar year is the average of\nthe consumer price index for all urban consumers published by the United\nStates department of labor, as of the close of the twelve-month period\nending on August thirty-first of each calendar year.\n b. The revision of the consumer price index for the calendar year\nnineteen hundred eighty-nine shall be used in the event the department\nof labor revises its method of determining the consumer price index.\n 4. The fees established pursuant to this section shall not be assessed\non emissions of carbon monoxide or any class I or II substance subject\nto a standard promulgated pursuant to section 7671 of the Act.\n 5. Any regulated air contaminant subject to the fees imposed pursuant\nto this section which qualifies as both a volatile organic compound and\na hazardous air pollutant regulated pursuant to section 7412 of the Act\nshall not be counted under both categories for the purpose of assessing\nfees.\n 6. On or before April first, nineteen hundred ninety-four, and\nbiennially thereafter, the department of audit and control shall prepare\nand submit to the governor and the legislature an audit on the fiscal\nstatus of the operating permit program created pursuant to section\n19-0311 of this chapter. Such audit shall include:\n a. an assessment of the actual direct and indirect costs of the\noperating permit program incurred, and the revenues received from fees\nimposed pursuant to this section and penalties imposed pursuant to\nsubdivision twelve of section 72-0201 of this article during the\nprevious fiscal year;\n b. an estimate of the direct and indirect costs of the operating\npermit program that will be incurred, and the revenues estimated to be\nreceived from fees imposed pursuant to this section and penalties\nimposed pursuant to subdivision twelve of section 72-0201 of this\narticle during the current fiscal year; and\n c. an estimate of any balance in the account that will be available at\nthe end of the current fiscal year.\n 7. The department may reduce the fee charged for categories of\nstationary sources, taking into account the financial resources of such\nsources, consistent with the provisions of section 7661f(f) of the Act.\n 8. If a city or county shall be delegated the authority to administer\nthe operating permit program established pursuant to section 19-0311 of\nthis chapter it may collect the fees established pursuant to this\nsection and no additional liability for fees under this section shall\naccrue for any such source.\n 9. No later than September thirtieth, nineteen hundred ninety-four and\nbefore September thirtieth of each subsequent year, the department shall\nreport to the governor, the legislature and the department of audit and\ncontrol on: (i) the actual direct and indirect costs of the operating\npermit program incurred, and the revenues received pursuant to fees\nimposed by this section, during the previous fiscal year; (ii) the\nestimated direct and indirect costs of the operating permit program that\nwill be incurred, and the anticipated revenues received or anticipated\nto be received pursuant to fees imposed by this section, during the\ncurrent fiscal year; (iii) an estimate of the direct and indirect costs\nof the operating permit program that will be incurred, and the tonnages\nof pollutants anticipated to be subject to the fees imposed by this\nsection, during the subsequent fiscal year; (iv) an estimate of any\nbalance in the operating permit program account of the clean air fund\nthat will be available at the end of the current fiscal year; (v) a\nrecommendation regarding adjustments to the fees imposed under this\nsection necessary to assure that the operating permit program account\nhas adequate funds to finance the direct and indirect cost of the\noperating permit program during future fiscal years; and (vi) the number\nof operating permit applications upon which the department has taken\nfinal action in the previous fiscal year, the average review time per\npermit, the number of person hours spent per permit, and the number of\ncompleted permit applications which are pending final action. Reports\nand accountings required to be filed with the administrator of the\nUnited States environmental protection agency may serve to satisfy this\nrequirement.\n