MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Conservation and Water Resources

By: Representative Ellington

AN ACT TO AMEND SECTION 49-17-30, MISSISSIPPI CODE OF 1972, TO REVISE THE METHOD BY WHICH TITLE V PERMIT FEES ARE CALCULATED AND TO SPECIFY THE MINIMUM AND MAXIMUM FEE; TO AMEND SECTION 49-17-14, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE USE OF TITLE V FEES RETAINED IN THE AIR OPERATING PERMIT FEE TRUST FUND IN SUCCEEDING FISCAL YEARS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. 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 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.

(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. The maximum annual fee shall be Two Hundred Fifty Thousand Dollars ($250,000.00) per facility.

(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.

(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.

(4) Any person required to pay the Title V permit 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.

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 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.

(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) The commission shall assess and collect a fee from each facility that is required to hold a Title V permit. The commission shall set a minimum fee of Two Hundred Fifty Dollars ($250.00). This minimum fee shall be assessed to each Title V facility for which the potential or actual emissions, as calculated under subsection (2)(b) of this action, otherwise subject the facility to a fee of less than Two Hundred Fifty Dollars ($250.00). The commission shall not assess and collect a fee greater than Two Hundred Fifty Thousand Dollars ($250,000.00) from any one (1) Title V facility.

(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.

(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.

(4) Any person required to pay the Title V permit 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 2. 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.

(8) 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.

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 * * *. 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 or, upon the recommendation of the Air Advisory Council and the adoption of that recommendation by the commission, for use over a designated number of immediately succeeding fiscal years, not to exceed the two (2) immediately succeeding fiscal years. In the succeeding fiscal year or years, the total to be collected from fees shall be reduced by the excess retained in the fund, in full or as apportioned annually pursuant to the air advisory committee recommendation or adopted by the commission, and the assessment rates shall be adjusted proportionately.

(8) 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.

SECTION 3. This act shall take effect and be in force from and after July 1, 1999.