N.Y. Environmental Conservation Law § 72-0303: Operating permit program fees

§ 72-0303. Operating permit program fees.

* 1. Commencing January first, two thousand fifteen 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 base fee of two thousand five hundred

dollars. This base fee shall be in addition to the fees listed below.

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 not to exceed the per ton fees described

below. The per ton fee is assessed on each ton of emissions up to seven

thousand tons annually of each regulated air contaminant as follows:

sixty dollars per ton for facilities with total emissions less than one

thousand tons annually; seventy dollars per ton for facilities with

total emissions of one thousand or more but less than two thousand tons

annually; eighty dollars per ton for facilities with total emissions of

two thousand or more but less than five thousand tons annually; and

ninety 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.

* NB Effective until January 1, 2027

* 1. Commencing January first, two thousand twenty-seven 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 base fee of eight thousand five

hundred dollars per facility. This base fee shall be in addition to the

fees listed below. Commencing January first, two thousand twenty-seven

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 not to exceed the

per ton fees described below. The per ton fee is assessed on each ton of

emissions of each regulated air contaminant as follows: two hundred

dollars per ton for facilities with total emissions less than one

thousand tons annually; two hundred twenty-five dollars per ton for

facilities with total emissions of one thousand or more but less than

two thousand tons annually; two hundred fifty dollars per ton for

facilities with total emissions of two thousand or more but less than

five thousand tons annually; and three hundred dollars per ton for

facilities with total emissions of five thousand or more tons annually.

Such fees 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 fees 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, including hazardous air

pollutants, 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; 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

and the rate of collection by the department of the bills issued for the

fees for the prior year.

Notwithstanding the provisions of the state administrative procedure

act, such calculation and fees 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 fees will be effective. In no event shall the fees established

herein be any greater than the maximum fee identified pursuant to this

section.

* NB Effective January 1, 2027

* 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.

* NB Effective until January 1, 2027

* 2. Bills issued for the fees established by subdivision one of this

section 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.

* NB Effective January 1, 2027

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. 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.

8. 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.

9. 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.