MISSISSIPPI LEGISLATURE

2020 Regular Session

To: Environment Prot, Cons and Water Res; Finance

By: Senator(s) DeLano, Jackson (11th), Jordan

Senate Bill 2728

(As Passed the Senate)

AN ACT TO AMEND SECTIONS 49-17-14, 49-17-16, 49-17-30 AND 49-17-32, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR MORE EFFICIENT MANAGEMENT OF THE AIR OPERATING PERMIT PROGRAM FEE TRUST FUND; TO PROVIDE FOR CHANGES TO THE TITLE V FEE SYSTEM SUCH THAT SUFFICIENT FUNDS ARE COLLECTED THROUGH AN EQUITABLE FEE SYSTEM FOR THE TITLE V PROGRAM; 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.

     ( * * *89)  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 related 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. * * *  The Advisory Council shall include within the study the type and quantity of actual and allowable emissions within the state that are covered by the Title V program.  After completing a study of the program needs and costs the Advisory Council shall recommend an equitable fee system for the Title V program that is based on the type and quantity of emissions.  The annual review for the air operating permit program shall determine if the fee system is collecting sufficient funds to meet Title V program needs. 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 * * * succeeding year to the commission and the Executive Director of the Department of Environmental Quality.

     (2) * * *  The Advisory Council shall submit recommendations to the Department of Environmental Quality concerning the costs of the development, implementation and administration of the State Air Operating Permit Implementation Plan in advance of the state's submittal to the Environmental Protection Agency which is due by November 1993.  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 * * * permitted industries that qualify for inclusion under the Title V program, that are required to pay the * * * permit program fee * * * and that are also permittees under the National Pollution Discharge Elimination System (NPDES) permit program of the Clean Water Act, 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 * * *Department of Economic and Community Development 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 the term for each member of the Advisory Council shall be four (4) years.  Members of the Advisory Council may serve successive and multiple terms.

 * * * The initial terms of appointment of the members of the Advisory Council shall be as follows:  the representatives of the permitted industries appointed by the Lieutenant Governor and the Speaker of the House of Representatives shall serve a term of one (1) year; the representative of the permitted industry appointed by the Governor and the Chairman of the Mississippi Small Business Compliance Advisory Panel shall serve a term of two (2) years; the Executive Director of the Department of Economic and Community Development and the President of the Mississippi Farm Bureau Federation, or their designees, shall serve a term of three (3) years; and the President of the Mississippi Manufacturers Association, or his designee, shall serve a term of four (4) years.  Thereafter, the length of the term for each member of the Advisory Council shall be four (4) years.

     (4) * * *  Original appointments to the Advisory Council shall be made no later than June 1, 1993.  Vacancies on the Advisory Council shall be filled by appointment in the same manner as the original appointments. * * *  The Advisory Council shall convene within sixty (60) days following the date of the appointment of the members.

     (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 * * * any air operating permit required under 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 permit fee. * * *  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.

     (2)  To facilitate the proper administration of the Title V program, the commission is authorized to assess and collect fees from * * * Title V program permittees.  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 Title V program fees. 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 Title V program fees.

 * * *  (a)  For purposes of fee assessment and collection, the maximum emission rate of each pollutant used in the calculation of fees shall be four thousand (4,000) tons per year per facility.

  (b)  For purposes of fee assessment and collection, the permit holder shall elect for actual or allowable emissions to be used in determining the annual quantity of emissions unless the commission determines by order that the method chosen by the applicant for calculating actual emissions fails to reasonably represent actual emissions.  Such order of the commission shall be subject to appeal in the manner provided in Section 49‑17‑41. Actual emissions shall be calculated using emission monitoring data or direct emissions measurements for the pollutant(s); mass balance calculations such as the amounts of the pollutant(s) entering and leaving process equipment and where mass balance calculations can be supported by direct measurement of process parameters, such direct measurement data shall be supplied; published emission factors such as those relating release quantities to throughput or equipment type (e.g., air emission factors); or other approaches such as engineering calculations (e.g., estimating volatilization using published mathematical formulas) or best engineering judgments where such judgments are derived from process and/or emission data which supports the estimates of maximum actual emissions.

If the commission determines that there is not sufficient information available on a facility's emissions, the determination of the fee shall be based upon the permitted allowable emissions until such time as an adequate determination of actual emissions is made.

  (c)  A minimum annual fee of Two Hundred Fifty Dollars ($250.00) shall be assessed to and collected from the owner or operator of each facility that is required to hold a Title V permit.

     (3)  (a) * * *  Prior to the date of full implementation of the Title V program in Mississippi, the fee assessed shall be Four Dollars ($4.00) per ton of emissions of each air pollutant for which fees can be assessed under the Title V program, not to exceed Fifty Thousand Dollars ($50,000.00) per facility. 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) * * *  Following the date of full implementation of the Title V program in Mississippi, the fee schedule for Title V permit fees for any subsequent calendar year shall be set 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; 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.  The commission may proceed with entry of the order on fees if the Advisory Council fails to submit its report in a timely manner.  The order of the commission may be appealed in the manner set forth in Section 49‑17‑41.  The determination of the fee shall be by order of the commission and shall not be considered the promulgation of a regulation by the commission.  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 permit fees.  Any undisputed amount due from an appellant must be paid according to the appellant's payment schedule during the pendency of the appeal. 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 * * * permit 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 air operating permit fee shall be due September 1 of each year.  Any facility which proposes to use actual emissions as the basis for the fee calculation shall submit by July 1 of each year an inventory of emissions for the previous calendar year.  For facilities using actual emissions as the basis of the fee, the fee shall be calculated based upon emissions during the previous calendar year.  For facilities using allowable emissions as the basis for the fee, the fee shall be calculated based upon the allowable emissions contained in the permit on the date of the invoice.  A permit holder 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 * * * permit holder 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 * * * air operating permit 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.

     ( * * *45)  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, 2020.

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