Section 72-0303. Operating permit program fees

1.  Commencing  January  first, nineteen hundred ninety-four and every
  year thereafter all sources of  regulated  air  contaminants  identified
  pursuant  to  subdivision  one  of section 19-0311 of this chapter shall
  submit to the department an annual fee of forty-five dollars per ton  up
  to  seven  thousand  tons  annually of each regulated air contaminant as
  follows:  forty-five dollars per ton for facilities with total emissions
  less than  one  thousand  tons  annually;  fifty  dollars  per  ton  for
  facilities  with  total  emissions of one thousand or more but less than
  two thousand tons annually; fifty-five dollars per  ton  for  facilities
  with total emissions of two thousand or more but less than five thousand
  tons  annually; and sixty-five dollars per ton for facilities with total
  emissions of five thousand or more tons  annually.  Such  fee  shall  be
  sufficient  to  support an appropriation approved by the legislature for
  the direct and indirect  costs  associated  with  the  operating  permit
  program  established  in section 19-0311 of this chapter. Such fee shall
  be established by the department and shall be calculated by dividing the
  amount of the current  year  appropriation  from  the  operating  permit
  program  account of the clean air fund by the total tons of emissions of
  regulated air contaminants that are  subject  to  the  operating  permit
  program  fees  from  sources  subject  to  the  operating permit program
  pursuant to section 19-0311 of this chapter up to  seven  thousand  tons
  annually  of  each  regulated air contaminant from each source; provided
  that, in making such calculation,  the  department  shall  adjust  their
  calculation  to  account  for  any  deficit  or surplus in the operating
  permit program account of the clean air  fund  established  pursuant  to
  section  ninety-seven-oo  of  the  state finance law; any loan repayment
  from the mobile  source  account  of  the  clean  air  fund  established
  pursuant  to  section  ninety-seven-oo of the state finance law; and the
  rate of collection by the department of the bills issued for the fee for
  the prior year.
    Notwithstanding the provisions of the state  administrative  procedure
  act,  such  calculation  and  fee  shall  be  established  as  a rule by
  publication in the Environmental Notice Bulletin no  later  than  thirty
  days  after  the  budget  bills making appropriations for the support of
  government are enacted or July first, whichever is later,  of  the  year
  such fee will be effective. In no event shall the fee established herein
  be any greater than the maximum fee identified pursuant to this section.
    2. Bills issued for the fee shall be based on actual emissions for the
  prior  calendar  year, as demonstrated to the department's satisfaction,
  or in the absence of such demonstration,  on  permitted  emissions,  or,
  where  there  is  no  permit,  on potential to emit. Persons required to
  submit an emissions statement to the department shall use such statement
  to demonstrate actual emissions under this section.
    3. Effective January  first,  nineteen  hundred  ninety-seven  through
  December    thirty-first,    nineteen    hundred    ninety-eight,    and
  notwithstanding the requirements of the state  administrative  procedure
  act,  the  cap  of  twenty-five  dollars  per  ton shall increase by the
  percentage, if any, by  which  the  consumer  price  index  exceeds  the
  consumer price index for the calendar year nineteen hundred eighty-nine.
    a.  The  consumer  price index for any calendar year is the average of
  the consumer price index for all urban consumers published by the United
  States department of labor, as of the close of the  twelve-month  period
  ending on August thirty-first of each calendar year.
    b.  The  revision  of  the  consumer price index for the calendar year
  nineteen hundred eighty-nine shall be used in the event  the  department
  of labor revises its method of determining the consumer price index.

    4. The fees established pursuant to this section shall not be assessed
  on  emissions  of carbon monoxide or any class I or II substance subject
  to a standard promulgated pursuant to section 7671 of the Act.
    5.  Any regulated air contaminant subject to the fees imposed pursuant
  to this section which qualifies as both a volatile organic compound  and
  a  hazardous air pollutant regulated pursuant to section 7412 of the Act
  shall not be counted under both categories for the purpose of  assessing
  fees.
    6.  On  or  before  April  first,  nineteen  hundred  ninety-four, and
  biennially thereafter, the department of audit and control shall prepare
  and submit to the governor and the legislature an audit  on  the  fiscal
  status  of  the  operating  permit  program  created pursuant to section
  19-0311 of this chapter. Such audit shall include:
    a. an assessment of the  actual  direct  and  indirect  costs  of  the
  operating  permit  program incurred, and the revenues received from fees
  imposed pursuant to this  section  and  penalties  imposed  pursuant  to
  subdivision  twelve  of  section  72-0201  of  this  article  during the
  previous fiscal year;
    b. an estimate of the direct  and  indirect  costs  of  the  operating
  permit  program  that will be incurred, and the revenues estimated to be
  received from fees  imposed  pursuant  to  this  section  and  penalties
  imposed  pursuant  to  subdivision  twelve  of  section  72-0201 of this
  article during the current fiscal year; and
    c. an estimate of any balance in the account that will be available at
  the end of the current fiscal year.
    7. Any person required to pay fees imposed pursuant  to  this  section
  may  elect  to  base  such  fees on the level of permitted emissions set
  forth in a permit, certificate or approval issued  pursuant  to  section
  19-0311 of this chapter.
    8.  The  department  may  reduce  the  fee  charged  for categories of
  stationary sources, taking into account the financial resources of  such
  sources, consistent with the provisions of section 7661f(f) of the Act.
    9.  If a city or county shall be delegated the authority to administer
  the operating permit program established pursuant to section 19-0311  of
  this  chapter  it  may  collect  the  fees  established pursuant to this
  section and no additional liability for fees under  this  section  shall
  accrue for any such source.
    10.  No  later  than September thirtieth, nineteen hundred ninety-four
  and before September thirtieth of each subsequent year,  the  department
  shall  report  to  the  governor,  the legislature and the department of
  audit and control on: (i) the actual direct and indirect  costs  of  the
  operating permit program incurred, and the revenues received pursuant to
  fees  imposed by this section, during the previous fiscal year; (ii) the
  estimated direct and indirect costs of the operating permit program that
  will be incurred, and the anticipated revenues received  or  anticipated
  to  be  received  pursuant  to  fees imposed by this section, during the
  current fiscal year; (iii) an estimate of the direct and indirect  costs
  of  the operating permit program that will be incurred, and the tonnages
  of pollutants anticipated to be subject to  the  fees  imposed  by  this
  section,  during  the  subsequent  fiscal  year; (iv) an estimate of any
  balance in the operating permit program account of the  clean  air  fund
  that  will  be  available  at  the end of the current fiscal year; (v) a
  recommendation regarding adjustments to  the  fees  imposed  under  this
  section  necessary  to  assure that the operating permit program account
  has adequate funds to finance  the  direct  and  indirect  cost  of  the
  operating permit program during future fiscal years; and (vi) the number
  of  operating  permit  applications  upon which the department has taken
  final action in the previous fiscal year, the average  review  time  per

  permit,  the  number of person hours spent per permit, and the number of
  completed permit applications which are pending  final  action.  Reports
  and  accountings  required  to  be  filed  with the administrator of the
  United  States environmental protection agency may serve to satisfy this
  requirement.