MISSISSIPPI LEGISLATURE
2005 Regular Session
To: Conservation and Water Resources
By: Representative Franks
AN ACT TO REQUIRE THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO CHARGE FEES WHERE NO PROVISION OF LAW SETS A FEE; TO PROVIDE THAT THE LEGISLATURE MAY REVOKE ANY FEE BY DULY ADOPTED LAW; TO AMEND SECTION 49-17-86, MISSISSIPPI CODE OF 1972, TO REVISE HOW THE WATER POLLUTION CONTROL EMERGENCY LOAN FUND IS ADMINISTERED BY THE COMMISSION; TO AMEND SECTION 49-17-407, MISSISSIPPI CODE OF 1972, TO REVISE HOW ENVIRONMENTAL FEES ON MOTOR FUELS ARE ASSESSED; TO AMEND SECTION 49-17-421, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE COMMISSION TO SET TANK REGULATORY FEES; TO AMEND SECTION 49-17-507, MISSISSIPPI CODE OF 1972, TO REVISE THE POWERS AND DUTIES OF THE COMMISSION REGULATING LEAD-BASED PAINT ACTIVITIES; TO AMEND SECTION 49-17-525, MISSISSIPPI CODE OF 1972, TO REVISE HOW THE LEAD-BASED PAINT PROGRAM OPERATIONS FUND IS ADMINISTERED BY THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Beginning on July 1, 2005, in all instances where no provision of law sets a fee, the Department of Environmental Quality shall charge a fee for any general permit that it issues to any permittee. For any other permit, any activity associated with the monitoring of the activities of a permittee or any other service provided to a private entity, where no provision of law sets a fee, the department shall charge a fee. All revenues collected from fees charged under the authority of this section shall be used by the Department of Environmental Quality to carry out the duties of the department.
(2) Any fee set by the Department of Environmental Quality shall be published and provided to the Mississippi Legislature by the first day of the regular legislative session immediately following the creation or modification of the fee, and shall remain effective unless the fee is revoked by law duly adopted by the Mississippi Legislature during the regular legislative session immediately following the creation or modification of the fee.
(3) This section shall stand repealed July 1, 2007.
SECTION 2. Section 49-17-86, Mississippi Code of 1972, is amended as follows:
49-17-86. (1) (a) There is created a fund in the State Treasury to be designated as the "Water Pollution Control Emergency Loan Fund" hereinafter referred to as "emergency fund."
(b) The emergency fund may receive appropriations, bond proceeds, grants, gifts, donations or funds from any source, public or private. The emergency fund shall be credited with all repayments of principal and interest derived from loans made from the emergency fund.
(c) The monies in the emergency fund may be expended only in amounts appropriated by the Legislature.
(d) The emergency fund shall be maintained in perpetuity for the purposes established in Sections 49-17-81 through 49-17-89. Unexpended amounts remaining in the emergency fund at the end of a fiscal year shall not lapse into the State General Fund. Any interest earned on amounts in the emergency fund shall be deposited to the credit of the fund.
(2) The commission shall establish a loan program to assist political subdivisions in making emergency improvements such as repairs to or replacement of machinery, equipment, materials, structures or devices in existing water pollution abatement projects or such other emergency water pollution abatement projects as the commission deems necessary. Loans from the emergency fund may be made to political subdivisions as set forth in a loan agreement in amounts not exceeding one hundred percent (100%) of eligible project costs as established by the commission. The commission may require local participation or funding from other sources, or otherwise limit the percentage of costs covered by loans from the emergency fund. The commission may establish a maximum amount for any loan not to exceed Three Hundred Fifty Thousand Dollars ($350,000.00).
(3) Except as otherwise provided in this section, the emergency fund may be used only:
(a) To make loans on the condition that:
(i) Loans are made at or below market interest rates, at terms not to exceed ten (10) years after project completion; the interest rate may vary from time to time and from loan to loan at the discretion of the commission.
(ii) Periodic principal and interest payments will commence when required by the commission but not later than one (1) year after project completion and all loans will be fully amortized when required by the commission but not later than ten (10) years after project completion.
(iii) The recipient of a loan shall establish a dedicated source of revenue for repayment of loans. In addition, the commission may require any loan recipient to impose a per connection surcharge on each customer for repayment of any loan funds provided under this section.
(iv) The recipient of the loan is not in arrears in repayments to the Water Pollution Control Revolving Fund, the Water Pollution Control Emergency Loan Fund or under the Water Pollution Abatement Loan Program.
(b) To provide financial assistance to political subdivisions in making emergency improvements such as repairs to or replacement of machinery, equipment, materials, structures or devices in existing water pollution abatement projects or such other emergency water pollution abatement projects as the commission deems necessary.
(c) To defray the reasonable costs of administering the emergency fund and conducting activities under this section, subject to annual appropriation by the Legislature.
(4) The commission shall establish a system of evaluating the eligibility of projects, including a determination of the emergency nature of a situation for which funding is sought.
(5) The fund will be credited with all payments of principal and interest derived from the fund uses described in subsection (3) of this section. However, notwithstanding any other provision of law to the contrary, all or any portion of payments of principal and interest derived from the fund uses described in subsection (3) of this section may be designated or pledged for repayment of a loan as provided for in Section 31-25-28 in connection with a loan from the Mississippi Development Bank.
(6) In addition to any amounts allowed under subsection (3)(c), the commission may establish and collect fees to further defray the * * * costs of administering the emergency fund. Any * * * fees may be included in loan amounts to political subdivisions for the purpose of facilitating payment to the commission * * *. The commission may also use administrative fees collected pursuant to Section 49-17-85 to defray the reasonable costs of administering the emergency fund.
(7) This section shall stand repealed July 1, 2007.
SECTION 3. Section 49-17-407, Mississippi Code of 1972, is amended as follows:
49-17-407. (1) (a) An environmental protection fee assessed and collected by the commission is hereby levied upon any bonded distributor, as defined by Sections 49-17-401 through 49-17-433, who sells or delivers motor fuels to a retailer or user in this state.
(b) Every person, other than a bonded distributor, who shall purchase or acquire motor fuels within this state on which the environmental protection fee has not accrued, shall be liable for the environmental protection fee.
(c) The environmental protection fee shall be imposed * * *.
(d) The environmental protection fee shall be collected by the State Tax Commission and shall be designated separately from the excise taxes on fuels.
(e) Any person liable for the environmental protection fee shall be subject to the same requirements and penalties as distributors under the provisions of the Mississippi Special Fuel Tax Law.
(f) Any person liable for the environmental protection fee shall file a report and remit any fees due at the same time provided for filing reports under Section 27-55-523, on forms prescribed by the State Tax Commission.
(g) The State Tax Commission is hereby authorized and empowered to promulgate all rules and regulations necessary for the administration of the environmental protection fee.
(2) (a) On or before the fifteenth day of each month the environmental protection fees collected during the previous month shall be deposited into the Mississippi Groundwater Protection Trust Fund established in Section 49-17-405. When the unobligated balance in the fund reaches or exceeds Ten Million Dollars ($10,000,000.00), the administrator of the fund shall notify the Executive Director of the Department of Environmental Quality and distribute such excess monies to the department for operation of the department. All environmental protection fees accrued shall be reported and paid.
(b) When the fund balance is reduced below Six Million Dollars ($6,000,000.00), the fee shall again be imposed at a rate set by the commission and until such time as the fund shall reach or exceed Ten Million Dollars ($10,000,000.00). The administrator of the fund shall notify, no later than the twenty-fifth day of the month, the State Tax Commission to reimpose the environmental protection fee. The imposition of the fee shall become effective on the first day of the second month succeeding the month in which the notice to reimpose the fee was given.
(3) This fund shall be used for the purposes set forth by the commission and for no other * * * purposes, no portion hereof shall ever be available to borrow from by any branch of government; it being the intent of the Legislature that this fund and its increments shall remain intact and inviolate. Any interest earned on monies in this fund shall remain in this fund.
(4) Monies held in the fund established under Sections 49-17-401 through 49-17-435 shall be used only at an active site and shall be disbursed in accordance with the commission requirements and as follows:
(a) Payments shall be made to any third party who brings a third-party claim against any owner of an underground storage tank and the commission as trustee of the Mississippi Groundwater Protection Trust Fund and who obtains a final judgment in such action which is valid and enforceable in this state against such parties. Payment shall be paid to the third party upon filing by such party an application with the department attaching the original or a certified copy of the final judgment.
(b) Payments shall be made in reasonable amounts to approved response action contractors and other parties involved in the site study and cleanup. Payment shall be made to the party incurring the costs by filing of a sworn application with the department indicating the fair and reasonable value of the costs of site rehabilitation, subject to the regulations and limitations as set by the department.
(5) Payments from the fund are limited as follows:
(a) For cleanup purposes, a maximum of One Million Dollars ($1,000,000.00) may be disbursed from the fund for any one (1) site, per confirmed release occurrence.
(b) For third-party judgments, a maximum of One Million Dollars ($1,000,000.00) may be disbursed from the fund for any one (1) site, per confirmed release occurrence.
(c) Nothing in Sections 49-17-401 through 49-17-435 shall establish or create any liability or responsibility on the part of the department or the State of Mississippi to pay any cleanup costs or third-party claims if the fund created herein is insufficient to do so.
(6) Monies held in the fund established under Sections 49-17-401 through 49-17-435 shall not be used for purchases of equipment needed to assist in cleanup operations.
(7) Nothing in Sections 49-17-401 through 49-17-435 shall serve to limit any recovery against an owner of an underground storage tank in excess of One Million Dollars ($1,000,000.00).
(8) Substantial compliance shall in no way be construed to be an absolute defense to civil liability.
(9) This section shall stand repealed July 1, 2007.
SECTION 4. Section 49-17-421, Mississippi Code of 1972, is amended as follows:
49-17-421. The commission may assess and collect a tank regulatory fee in an amount sufficient to administer Sections 49-17-401 through 49-17-435 * * * from the owner of each underground storage tank in use in Mississippi on July 1, 1988, or brought into use after that date, as provided in the Mississippi Underground Storage Tank Act of 1988 (Sections 49-17-401 through 49-17-435). The tank regulatory fee assessed under this section is a debt due by the owner of each underground storage tank in use in Mississippi on July 1, 1988, or brought into use after that date. The tank regulatory fee shall be due on a date established by the commission. If any part of the tank regulatory fee is not paid within thirty (30) days after the due date, a penalty of fifty percent (50%) of the amount due shall accrue at once and be added to the fee, unless the owner of the underground storage tank demonstrates to the commission that the failure to make timely payment was unavoidable due to financial hardship or otherwise beyond the control of the owner. Monies collected under this section shall be deposited in a special fund which is created in the State Treasury. Unexpended amounts remaining in the special fund at the end of the fiscal year shall not lapse into the General Fund and any interest earned on amounts in the special fund shall be credited to the special fund by the Treasurer. The fund may receive monies from any available public or private source, including, but not limited to, collection of fees, interest, grants, taxes, public or private donations and judicial actions. Monies in this special fund shall be expended by annual appropriation approved by the Legislature to administer Sections 49-17-401 through 49-17-435.
This section shall stand repealed July 1, 2007.
SECTION 5. Section 49-17-507, Mississippi Code of 1972, is amended as follows:
49-17-507. In addition to any other powers and duties authorized by law, the commission shall have the following powers and duties regarding lead-based paint activities:
(a) To adopt, modify, repeal and promulgate, after due notice and hearing, and where not otherwise prohibited by federal or state law, to make exceptions to and grant exemptions and variances from, and to enforce rules and regulations implementing or effectuating the powers and duties of the commission under Sections 49-17-501 through 49-17-531;
(b) To issue, reissue, suspend, revoke or deny the issuance or reissuance of accreditation for lead-based paint activity training programs and to require the modification of those training programs;
(c) To issue, reissue, suspend, revoke or deny the issuance or reissuance of certificates for risk assessors, project designers, supervisors, inspectors and workers involved in lead-based paint activities;
(d) To develop and require the use of work practice standards for lead-based paint activities and to monitor compliance with those work practice standards;
(e) To enforce and assess penalties for violations of Sections 49-17-501 through 49-17-531;
(f) To assess and collect fees * * *;
(g) To develop an examination and grading system for testing applicants to be administered by accredited training programs;
(h) To establish requirements and procedures for the administration of a third-party certification examination;
(i) To enter into reciprocal agreements for accreditation of training programs and certification of risk assessors, project designers, supervisors, inspectors and workers with other states that have established accreditation and certification programs that meet or exceed the accreditation and certification requirements adopted under Sections 49-17-501 through 49-17-531;
(j) To apply for, receive and expend any contributions, gifts, devises, bequests or funds from any source relating to Sections 49-17-501 through 49-17-531;
(k) To enter into, and to authorize the executive director to execute with the approval of the commission, contracts, grants and cooperative agreements, except as limited under Section 49-2-9, with any federal or state agency or subdivision thereof, any public or private institution, or any other person in connection with carrying out Sections 49-17-501 through 49-17-531; and
(l) To discharge other duties, responsibilities and powers necessary to implement Sections 49-17-501 through 49-17-531.
(m) This section shall stand repealed July 1, 2007.
SECTION 6. Section 49-17-525, Mississippi Code of 1972, is amended as follows:
49-17-525. (1) (a) There is created in the State Treasury a fund to be designated as the Lead-Based Paint Program Operations Fund, referred to in this section as "fund," to be administered by the executive director and expended by appropriation approved by the Legislature.
(b) Monies in the fund shall be utilized to pay reasonable direct and indirect costs associated with the administration and enforcement of the lead-based paint activity accreditation and certification program.
(c) Expenditures may be made from the fund upon requisition by the executive director.
(d) 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.
(e) 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, judicial actions and appropriated funds.
(f) 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 to be expended by appropriation approved by the Legislature.
(2) (a) The commission shall set by order a schedule of fees * * *.
(b) All monies collected under this section shall be deposited into the fund.
(c) The commission may delegate to the department responsibility for the collection of fees under this section.
(d) Any person required to pay a fee under this section who disagrees with the calculation or applicability of the fee may petition the commission for a hearing in accordance with Section 49-17-35, Mississippi Code of 1972. Any hearing shall be in accordance with the provisions of Section 49-17-33, Mississippi Code of 1972.
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(3) This section shall stand repealed July 1, 2007.
SECTION 7. This act shall take effect and be in force from and after July 1, 2005.