MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Appropriations
By: Representative Mangold
AN ACT TO AMEND SECTIONS 49-17-14, 49-17-16, 49-17-30 AND 49-17-32, MISSISSIPPI CODE OF 1972, TO REVISE THE AIR OPERATING PERMIT PROGRAM FEE TRUST FUND; TO REVISE THE PURPOSES OF THE ADVISORY COUNCIL; TO REVISE THE TITLE V FEE SYSTEM BY PROVIDING THAT FUNDS ARE COLLECTED THROUGH AN EQUITABLE FEE SYSTEM FOR THE TITLE V PROGRAM; TO PROVIDE THE COMMISSION ON ENVIRONMENTAL QUALITY WITH CERTAIN AUTHORITY AND REQUIREMENTS REGARDING THE SETTING OF FEES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 49-17-14, Mississippi Code of 1972, is amended as follows:
49-17-14. (1) "Title V program" means, as used in Sections 49-17-1 through 49-17-45, the air operating permit program mandated in Title V of the 1990 amendments to the federal Clean Air Act, codified in 42 USCS Section 7661, et seq.
(2) There is created in the State Treasury a fund to be designated as the "Air Operating Permit Program Fee Trust Fund," referred to hereinafter as the "fund."
(3) The fund shall be treated as a special trust fund. Interest earned on the principal therein shall be credited by the Treasurer to the fund.
(4) The fund may receive monies from any available public or private source including, but not limited to, collection of fees, interest, grants, taxes, public and private donations and judicial actions.
(5) To facilitate the proper administration of the fund, the commission is authorized to promulgate rules and regulations for the administration of the fund.
(6) The commission shall expend or utilize monies in the fund by an annual appropriation approved by the Legislature to pay all reasonable direct and indirect costs associated with the development and administration of the Title V program including, but not limited to, the reasonable costs of the following activities as they relate to the Title V program:
(a) Preparing generally applicable regulations or guidance regarding the permit program or its implementation or enforcement;
(b) Reviewing and acting on any application for a permit, permit modification or permit renewal, including the development of an applicable requirement as part of the processing of a permit, or permit modification or renewal;
(c) Administering the permit program, including the supporting and tracking of permit applications, compliance certification, and related data entry;
(d) Implementing and enforcing the terms of any Title V 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;
(e) Emissions and ambient monitoring;
(f) Modeling, analyses, or demonstrations;
(g) Preparing inventories and tracking emissions;
(h) Providing direct and indirect support to sources under the Small Business Stationary Source Technical and Environmental Compliance Assistance Program under Section 507 of the federal Clean Air Act in determining and meeting their obligations under this section; and
(i) Providing funding to the Advisory Council created in Section 49-17-16 in an amount reasonably sufficient to meet the Advisory Council's obligations under Sections 49-17-1 through 49-17-45.
(7) Monies in the fund at
the end of the fiscal year shall be retained in the fund for use in the next
succeeding fiscal year. * * *If the annual fees collected exceed the cost of administering the Title V
program for that fiscal year, then the excess shall be applied to the cost of
administering the program for the succeeding fiscal year. In the succeeding
fiscal year, the total to be collected from fees shall be reduced by the excess
retained in the fund and the assessment rates shall be adjusted proportionately
If the fund balance at the end of the fiscal year exceeds thirty-three
percent (33%) of the projected annual costs of administering the program, the
assessment rates may be adjusted to reduce the future projected fund balance.
If necessary, the assessment rates shall be adjusted during the setting of the
next fee schedule.
(8) At no time shall a fee be assessed that results in a projected ending fund balance of more than the current annual cost of administering the Title V program.
( * * *9) No such fees shall be utilized by
the Department of Environmental Quality or any other person for any purpose or
purposes other than those purposes required by Sections 49-17-1 through 49-17-45,
as they relate to the Title V program.
SECTION 2. Section 49-17-16, Mississippi Code of 1972, is amended as follows:
49-17-16. (1) (a) An Advisory Council, hereinafter referred to as "Advisory Council," is created to conduct an independent study of the costs for the development and administration of the Title V program within the Department of Environmental Quality and to conduct an annual review of the costs of administering such programs.
(b) The costs to be
included within the study for the Title V program shall be those costs set
forth in Section 49-17-14. * * * After completing a study of the program needs and costs,
the Advisory Council shall recommend an equitable fee system for the Title V
program. The annual review of the Title V program shall determine if the fee
system is collecting sufficient funds to meet the program needs. The Advisory
Council shall recommend an appropriate fee schedule for the upcoming fee year
and, if necessary, recommend changes to the existing fee system so that
sufficient funds are collected through an equitable fee system. Each annual
review report shall be due January 1 of each year to the commission and the
Executive Director of the Department of Environmental Quality.
(2) * * * The Department of
Environmental Quality shall assist the Advisory Council by providing any
information the Advisory Council may require to perform its duties under
Sections 49-17-1 through 49-17-45.
(3) The Advisory Council
shall be composed of the following seven (7) persons appointed as follows:
three (3) representatives of * * * industries that qualify for inclusion
under the Title V program, that are required to pay the * * * program fee * * *,
with one (1) such representative to be appointed by the Governor, one (1) by
the Lieutenant Governor and one (1) by the Speaker of the House of
Representatives; the Executive Director of the * * *
Mississippi Development Authority; the President of the Mississippi
Manufacturers Association; the President of the Mississippi Farm Bureau
Federation; and the Chairman of the Mississippi Small Business Compliance
Advisory Panel. Nonappointed members of the Advisory Council may designate an
alternate member to act in their stead in performing any function of the
Advisory Council. The length of term for each member of the Advisory
Council shall be four (4) years. Members of the Advisory Council may serve
successive and multiple terms.
* * *
(4) * * * Vacancies on the Advisory Council
shall be filled by appointment in the same manner as the original appointments. * * *
(5) The Advisory Council shall select from their membership a chairperson to preside over meetings and a vice chairperson to preside in the absence of the chairperson or when the chairperson shall be excused. The Advisory Council shall adopt procedures governing the manner of conducting its business. A majority of the members shall constitute a quorum to do business.
(6) Members of the Advisory Council shall serve without salary. The members of the Advisory Council shall be entitled to receive reimbursement of their actual travel and hotel expenses as provided in Section 25-3-41, incurred while in the performance of their duties as members of the Advisory Council to be paid on an itemized statement approved by the State Fiscal Officer. Expenses shall be paid from fees collected in accordance with Section 49-17-30.
(7) The Executive Director of the Department of Environmental Quality shall provide technical, clerical and other support services, including services by contract, as the Advisory Council determines that it requires in the performance of its functions.
SECTION 3. Section 49-17-30, Mississippi Code of 1972, is amended as follows:
49-17-30. (1) As a
condition of * * * Title V of the federal Clean Air
Act, the owner or operator of any stationary source required to obtain an air
operating permit under the Title V program, hereinafter referred to as a
"Title V permit," shall pay to the Department of Environmental
Quality an annual fee.
(2) To facilitate the
proper administration of the Title V program, the commission is authorized to
assess and collect fees from * * * any stationary source subject
to the Title V program. The commission shall establish the amount of each fee
to cover the costs of the Title V program as provided in Section 49-17-14. The
commission is further authorized to promulgate such rules and regulations as
are necessary for the development and administration of the Title V program and
the assessment and collection of the Title V program fees.
* * *
(3) (a) * * * The fee schedule for Title V program fees shall be set
annually by order of the commission in an amount sufficient to cover the
reasonable costs of development and administration of the Title V program. The
commission's order shall follow:
(i) Receipt of the report and recommendations of the Advisory Council, if timely received; and
(ii) A public
hearing to be held not earlier than thirty (30) days following receipt by the
commission of the report and recommendations of the Advisory Council. * * *.
(b) * * *
The commission may proceed with entry of the order on fees if the Advisory
Council fails to submit its report in a timely manner.
(c) The order of the commission may be appealed in the manner set forth in Section 49-17-41.
(d) The determination of the fee set by order of the commission shall not be considered the promulgation of a regulation by the commission.
(e) The record of the public hearing shall be included in the record upon which the order is based and shall become a part of the appellate records for all appeals taken from the order of the commission establishing or modifying Title V program fees. Any undisputed amount due from an appellant must be paid according to the appellant's payment schedule during the pendency of the appeal.
(4) Any person required to
pay the Title V * * *
program fee set forth under this chapter who disagrees with the
calculation or applicability of the person's fee may petition the commission in
writing for a hearing in accordance with Section 49-17-35. Such hearing shall
be in accordance with Section 49-17-33. Any disputed portion of the fee for
which a hearing has been requested will not incur any penalty or interest from
and after the receipt by the commission of the hearing petition. The decision
of the commission may be appealed in the manner set forth in Section 49-17-41.
(5) All fees collected pursuant to this section shall be deposited into the "Air Operating Permit Program Fee Trust Fund" established in Section 49-17-14.
SECTION 4. Section 49-17-32, Mississippi Code of 1972, is amended as follows:
49-17-32. (1) The commission may delegate to the Department of Environmental Quality the responsibility for the collection of the Title V program fees.
(2) * * * The Title V program
fee shall be due September 1 of each year. Each owner or operator may elect a
quarterly payment method of four (4) equal payments with the payments due
September 1, December 1, March 1 and June 1. The owner or operator shall
notify the Department of Environmental Quality that the quarterly payment
method will be used by September 1.
(3) If any part of the * * * Title V program fee
imposed is not paid within thirty (30) days after the due date, a penalty of
ten percent (10%) of the amount due shall at once accrue and be added thereto,
unless the permittee demonstrates to the commission that the failure to make
timely payment was unavoidable due to financial hardship or otherwise beyond
the permittee's control. If the fee is not paid in full, including any penalty
within sixty (60) days of the due date, the Environmental Quality Permit Board
may revoke the permit upon proper notice and hearing as required by law. Any
penalty collected under this section shall be deposited into the "Air
Operating Permit Program Fee Trust Fund."
(4) Any owner or operator that fails to properly identify themselves subject to the Title V program may be subject to fees and penalties as determined by the commission.
( * * *5) It is the intent of the Legislature
that fees collected pursuant to Sections 49-17-1 through 49-17-45 shall not
supplant or reduce in any way the General Fund appropriation to the Department
of Environmental Quality.
SECTION 5. This act shall take effect and be in force from and after July 1, 2018.