Delaware General Assembly

AN ACT TO AMEND TITLE 7 OF THE DELAWARE CODE RELATING TO THE CLEAN AIR ACT TITLE V OPERATING PERMIT PROGRAM.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

“(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 (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 2000, 2001, and 2002, from each source that is required to pay the annual fee as set forth in (a) above. The annual fee for each subject source will be determined by the sum of two component fees: a Base Fee and a User Fee. For sources that are identified in the 1996 Delaware Point Source Emission Inventory of Estimated Actual Air contaminants, the Base Fee and the User Fee shall be calculated as set forth in (d) and (e), respectively, below. For all other sources the Base Fee and User Fee shall be calculated as set forth in (f) below. The Department shall publish each source name, Base Fee information, and User Fee information in the Delaware Register of Regulations.

(d) Base Fee. The Base Fee relates to services which 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 two additional programs: the SBTCP, and a portion of the accidental release prevention program. The Department will place each subject source into one of the following four categories, either as a voluntarily requested Synthetic Minor, or as determined from estimated hours spent performing services:

(1) Synthetic Minor: $3,000;

(2) Routine, up to 400 hours spent: $7,500;

(3) Complex, from 401 to 625 hours spent: $18,000; and

(4) Very Complex, over 625 hours spent; $39,500.

Beginning January 1, 2000 the Department will 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 evaluation of the Title V program associated with the expiration of this statute on December 31, 2002.

(e) User Fee. The User Fee relates to activities not identified in (d) above 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, as listed in the 1996 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants. The User Fees are as follows:

(1) Emissions between 0 – 25 tons: $1,000;

(2) Emissions between 26 – 100 tons: $2,000;

(3) Emissions between 101 – 300 tons: $5,000;

(4) Emissions between 301 – 1000 tons: $10,000;

(5) Emissions between 1001 – 2500 tons: $40,000;

(6) Emissions between 2501 – 10,000 tons: $100,000;

(7) Emissions greater than 10,000 tons: $225,000.

(f) Sources not included in the 1996 Delaware Point Source Emission Inventory of Estimated Actual Regulated Air Contaminants, shall be assessed a Base Fee that is consistent with the categories and amounts specified in (d) above. 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 application that is consistent with the categories and amounts specified in (e) above.

(g) 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 §6098 of this title. After December 31, 2002, no fees shall be collected pursuant to this section unless authorized by a further act of the General Assembly.

(h) 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.

(i) Any funds collected under this section shall be deposited in the account as described in §6096 of this title and shall be used solely to develop, administer and implement the Program.”

(j) The Air Quality Management Section will publish, by April 15 and October 15 of each year, for the preceding six (6) months the overall program costs, the fees collected, current staffing levels and program accomplishments. The Division of Air and Waste Management shall publish a notice, in a paper of general circulation throughout the State, the availability of the report. Additionally, the Division shall mail a copy of said notice to the personnel on the Air Quality Management’s mailing lists.”

Ҥ6098. Permit Shield.

Except for sources required to have a permit before construction or modification under the applicable requirements of this subchapter, if an applicant has submitted a timely and complete application for a permit required by this title (including renewals), but final action has not been taken on such application, the source’s failure to have a permit shall not be a violation of this subchapter, unless the delay in final action was due to the failure of the applicant to timely submit information required or requested to process the application.”

“The Committee shall submit its final report on or before February 1, 2003, and shall cease to exist on that date absent a further act of the General Assembly.”

Approved July 20,1999