2006 Delaware Code - Subchapter VIII — Clean Air Act Title V Operating Permit Program

§ 6095. Applicability.

This subchapter shall apply to all sources required to obtain a Title V Operating Permit pursuant to the federal Clean Air Act Amendments of 1990. Such sources shall include, but not be limited to, the following:

(1) Sulfuric acid plants; municipal incinerators; fossil-fuel burners; petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels; petroleum refineries; sulfur recovery plants; chemical process plants;

(2) For pollutants other than radionuclides, any stationary source or group of stationary sources located within a contiguous area and under common control or common ownership consistent with the requirements of 40 C.F.R. Part 70, that emits or has the potential to emit, in the aggregate, 10 tons per year (tpy) or more of any hazardous air pollutant which has been listed pursuant to Title I, § 112(b) of the Clean Air Act Amendments of 1990, Public Law 101 -- 549, 25 tpy or more of any combination of such hazardous air pollutants, or such lesser quantity as the Department may establish by regulation;

(3) A source that directly emits or has the potential to emit, 100 tpy or more of any air pollutant, including any major source of fugitive emissions of any such pollutant, as the Department may establish by regulation;

(4) For ozone nonattainment areas, sources with the potential to emit 100 tpy or more of volatile organic compounds or oxides of nitrogen in areas classified as "marginal" or "moderate," 50 tpy or more in areas classified as "serious," 25 tpy or more in areas classified as "severe," and sources subject to the requirements for preconstruction review; except that the references in this paragraph to 100, 50, and 25 tpy of nitrogen oxides shall not apply with respect to any source for which the Department has made a finding, pursuant to regulations, that requirements under this section do not apply;

(5) For areas within the northeast transport region, sources with the potential to emit 50 tpy or more of volatile organic compounds; or

(6) Any other sources designated by the Department or mandated for designation by the United States Environmental Protection Agency. (69 Del. Laws, c. 121, § 1.)

§ 6096. Title V account.

The Secretary shall establish a separate account entitled the "Clean Air Act Title V Operating Permit Program Account," hereinafter the "Account." All fees collected under this subchapter shall be deposited into this account and utilized solely to cover all direct and indirect costs required to support the Title V Operating Permit Program, hereinafter "Program." Any civil or administrative penalties or costs recovered as a result of a violation of a Title V permit shall be used to further the goals and purposes of the Department to promote clean air for the citizens of Delaware. (69 Del. Laws, c. 121, § 1.)

§ 6097. Fees ›Effective until Jan. 1, 2006.|.

(a) The Department shall collect an annual fee from sources that are required to obtain a Title V Operating Permit pursuant to the Title V Program and from sources who voluntarily limit their potential to emit to below Title V applicability thresholds as set forth in § 6095 of this title (i.e., a synthetic minor facility). The annual fees shall be utilized solely to pay for all direct and indirect costs required to develop, administer and implement the Program.

(b) The fee schedule must result in the collection and retention of revenues sufficient to cover the permit program costs. These costs include, but are not limited to, the costs of the following activities, as they relate to the operating permit program for stationary sources: preparing generally applicable regulations or guidance documents regarding the permit program or its implementation or enforcement; reviewing and acting on any application for a permit, permit revision or permit renewal, including the development of an applicable requirement as part of the processing of a permit or permit revision or renewal; general administrative costs of implementing the permit program, including the supporting and tracking of data; implementing and enforcing the terms of any Title V Operating 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; emissions and ambient monitoring; modeling; preparing inventories and tracking emissions; and supporting the ombudsman established pursuant to the Small Business Stationary Source Technical and Environmental Compliance Program ("SBTCP") to assist sources covered by the SBTCP in determining and meeting their obligations under the Title V Operating Permit Program.

(c) The Department shall collect annual fees, payable annually or in quarterly installments, during calendar years 2003, 2004 and 2005, from each source that is required to pay the annual fee as set forth in subsection (a) of this section. The annual fee for each subject source will be determined by the sum of 2 component fees: a base fee and a user fee. For sources that are identified in the 1999 Delaware Point Source Emission Inventory of Estimated Actual Air contaminants, the base fee and the user fee shall be calculated as set forth in subsections (d) and (e) of this section. For all other sources the base fee and user fee shall be calculated as set forth in subsection (f) of this section. The Department shall publish each source name, base fee information and user fee information in the Delaware Register of Regulations.

(d) The base fee relates to services that are common to all sources subject to the Program. These services include activities such as permit issuance and renewals; stationary source regulation development; ambient monitoring; emission inventory; control strategy development; and development, administration and implementation of 2 additional programs: the SBTCP and a portion of the accidental release prevention program. The Department will place each subject source into 1 of the following 4 categories, either as a voluntarily requested synthetic minor or as determined from estimated hours spent performing services:

(1) Synthetic minor: $3,000;

(2) Routine, up to 400 hours spent: $7,500;

(3) Complex, from 401 to 625 hours spent: $18,000; and

(4) Very complex, over 625 hours spent; $39,500.

Beginning January 1, 2000, the Department will track the actual hours spent processing Title V permits and performing other related services under the Title V Program. This information may be used in the evaluation of the Title V Program associated with the expiration of this statute on December 31, 2005.

(e) The user fee relates to activities not identified in subsection (d) of this section for the Program, such as: development, administration and implementation of a compliance and enforcement program; implementation and enforcement of the terms of any Title V Operating Permit or synthetic minor permit; permit revisions or amendments, including the development of an applicable requirement as part of the processing of the permit issuance, revision or amendment; the supporting and tracking of data; modeling; and adequate resources to determine which sources are subject to the Program. Such fees shall be based on the emissions of each air contaminant, in whole tons and in the aggregate, excluding carbon monoxide, as listed in the 1999 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants. The user fees are as follows:

(1) Emissions between 0 -- 25 tons: $1,000;

(2) Emissions between 26 -- 100 tons: $2,000;

(3) Emissions between 101 -- 300 tons: $5,000;

(4) Emissions between 301 -- 1000 tons: $10,000;

(5) Emissions between 1001 -- 2500 tons: $40,000;

(6) Emissions between 2501 -- 10,000 tons: $100,000;

(7) Emissions greater than 10,000 tons: $225,000.

(f) Sources not included in the 1999 Delaware Point Source Emission Inventory of Estimated Actual Regulated Air Contaminants shall be assessed a base fee that is consistent with the categories and amounts specified in subsection (d) of this section. The estimated hours on which the base fee assessment is calculated shall include an evaluation of specific regulatory applicability to the source. This shall include, but is not limited to, the following: New source review; new source performance standards; toxic requirements, to include maximum achievable control technology and National Emission Standards for Hazardous Air Pollutants; and continuous emission monitoring requirements. Such sources shall also be assessed a user fee based upon allowable emissions specified in its permit that is consistent with the categories and amounts specified in subsection (e) of this section.

(g) These fees may be increased on an annual basis by no more than the Federal Consumer Price Index for the previous calendar year. Any increases in fees are subject to review and approval by the committee established pursuant to § 6098 of this title. After December 31, 2005, no fees shall be collected pursuant to this section unless authorized by a further act of the General Assembly.

(h) In determining the amount of tons of actual emissions, the Department shall not be required to include any amount of air contaminant emitted by any source in excess of 4,000 tons per year of that air contaminant. The determination of common control or common ownership shall be consistent with the requirements of 40 C.F.R. Part 70.

(i) Any funds collected under this section shall be deposited in the account as described in § 6096 of this title, shall be interest earning, and shall be used solely to develop, administer and implement the Program.

(j) The Air Quality Management Section will publish, by April 15 and October 15 of each year, the overall program costs, the fees collected, current staffing levels and program accomplishments for the preceding 6 months. The Division of Air and Waste Management shall publish a notice announcing the availability of the report in a paper of general circulation throughout the State. Additionally, the Division shall mail a copy of said notice to the personnel on the Air Quality Management Section's mailing lists. (69 Del. Laws, c. 121, § 1; 70 Del. Laws, c. 8, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 214, § 1; 73 Del. Laws, c. 318, § 1; 73 Del. Laws, c. 381, § 1.)

§ 6097. Fees ›Effective Jan. 1, 2006.|.

(a) The Department shall collect an annual fee from sources that are required to obtain a Title V Operating Permit pursuant to the Title V Program and from sources who voluntarily limit their potential to emit to below Title V applicability thresholds as set forth in § 6095 of this title (i.e., a synthetic minor facility). The annual fees shall be utilized solely to pay for all direct and indirect costs required to develop, administer and implement the Program.

(b) The fee schedule must result in the collection and retention of revenues sufficient to cover the permit program costs. These costs include, but are not limited to, the costs of the following activities, as they relate to the operating permit program for stationary sources: preparing generally applicable regulations or guidance documents regarding the permit program or its implementation or enforcement; reviewing and acting on any application for a permit, permit revision or permit renewal, including the development of an applicable requirement as part of the processing of a permit or permit revision or renewal; general administrative costs of implementing the permit program, including the supporting and tracking of data; implementing and enforcing the terms of any Title V Operating 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; emissions and ambient monitoring; modeling; preparing inventories and tracking emissions; and supporting the ombudsman established pursuant to the Small Business Stationary Source Technical and Environmental Compliance Program ("SBTCP") to assist sources covered by the SBTCP in determining and meeting their obligations under the Title V Operating Permit Program.

(c) The Department shall collect annual fees, payable annually or in quarterly installments, during calendar years 2006, 2007 and 2008, from each source that is required to pay the annual fee as set forth in subsection (a) of this section. The annual fee for each subject source will be determined by the sum of 2 component fees: a base fee and a user fee. For sources that are identified in the 2002 Delaware Point Source Emission Inventory of Estimated Actual Air contaminants, the base fee and the user fee shall be calculated as set forth in subsections (d) and (e) of this section. For all other sources the base fee and user fee shall be calculated as set forth in subsection (f) of this section. The Department shall publish each source name, base fee information and user fee information in the Delaware Register of Regulations.

(d) The base fee relates to services that are common to all sources subject to the program. These services include activities such as permit issuance and renewals; stationary source regulation development; ambient monitoring; emission inventory; control strategy development; and development, administration and implementation of 2 additional programs: the Small Business Stationary Source Technical and Environmental Compliance Program and a portion of the accidental release prevention program. The Department will place each subject source into 1 of the following 6 categories:

Category A Greater than 5000 hours $200,000

Category B from 2500 to 5000 hours $60,000

Category C from 1200 to 2499 hours $30,000

Category D from 750 to 1199 hours $15,000

Category E from 300 to 749 hours $6,000

Category F from 0 to 299 hours $3,000

Determination shall be based upon the most recent 5 year's data of engineering, compliance and enforcement hours expended for each facility. The Department will continue to track the actual hours spent processing Title V permits and performing other related services under the Title V program. This information may be used in the evaluations of the Title V program associated with the expiration of this statute on December 31, 2008.

(e) The user fee relates to activities not identified in subsection (d) of this section for the Program, such as: development, administration and implementation of a compliance and enforcement program; implementation and enforcement of the terms of any Title V Operating Permit or synthetic minor permit; permit revisions or amendments, including the development of an applicable requirement as part of the processing of the permit issuance, revision or amendment; the supporting and tracking of data; modeling; and adequate resources to determine which sources are subject to the Program. Such fees shall be based on the emissions of each air contaminant, in whole tons and in the aggregate, excluding carbon monoxide, as listed in the 2002 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants. The emission fees are as follows:

(1) Emission Ban G from 0 to 75 tons $ 2,000

(2) Emission Ban H from 76 to 200 tons $ 5,000

(3) Emission Ban I from 201 to 500 tons $ 12,000

(4) Emission Ban J from 501 to 1000 tons $ 25,000

(5) Emission Ban K from 1001 to 2500 tons $ 50,000

(6) Emission Ban L from 2501 to 6000 tons $ 75,000

(7) Emission Ban M Greater than 6000 tons $125,000

(f) Sources not included in the 2002 Delaware Point Source Emission Inventory of Estimated Actual Regulated Air Contaminants shall be assessed a base fee that is consistent with the categories and amounts specified in subsection (d) of this section. The estimated hours on which the base fee assessment is calculated shall include an evaluation of specific regulatory applicability to the source. This shall include, but is not limited to, the following: New source review; new source performance standards; toxic requirements, to include maximum achievable control technology and National Emission Standards for Hazardous Air Pollutants; and continuous emission monitoring requirements. Such sources shall also be assessed a user fee based upon allowable emissions specified in its permit that is consistent with the categories and amounts specified in subsection (e) of this section.

(g) These fees may be increased on an annual basis by no more than the Federal Consumer Price Index for the previous calendar year. Any increases in fees are subject to review and approval by the committee established pursuant to § 6098 of this title. After December 31, 2008, no fees shall be collected pursuant to this section unless authorized by a further act of the General Assembly.

(h) In determining the amount of tons of actual emissions, the Department shall not be required to include any amount of air contaminant emitted by any source in excess of 4,000 tons per year of that air contaminant. The determination of common control or common ownership shall be consistent with the requirements of 40 C.F.R. Part 70.

(i) Any funds collected under this section shall be deposited in the account as described in § 6096 of this title, shall be interest earning, and shall be used solely to develop, administer and implement the Program.

(j) The Air Quality Management Section will publish, by April 15 and October 15 of each year, the overall program costs, the fees collected, current staffing levels and program accomplishments for the preceding 6 months. The Division of Air and Waste Management shall publish a notice announcing the availability of the report in a paper of general circulation throughout the State. Additionally, the Division shall mail a copy of said notice to the personnel on the Air Quality Management Section's mailing lists. (69 Del. Laws, c. 121, § 1; 70 Del. Laws, c. 8, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 214, § 1; 73 Del. Laws, c. 318, § 1; 73 Del. Laws, c. 381, § 1; 75 Del. Laws, c. 172, §§ 1-5.)

§ 6098. Permit shield.

Except for sources required to have a permit before construction or modification under the applicable requirements of this subchapter, if an applicant has submitted a timely and complete application for a permit required by this title (including renewals), but final action has not been taken on such application, the source's failure to have a permit shall not be a violation of this subchapter, unless the delay in final action was due to the failure of the applicant to timely submit information required or requested to process the application. (72 Del. Laws, c. 214, § 3.)

§ 6099. Title V Operating Permit Program Advisory Committee.

There shall be established a "Title V Operating Permit Program Advisory Committee," hereinafter referred to as "Committee." The Committee members shall be appointed by the Governor and shall include, but not be limited to, the Secretary of the Department of Natural Resources and Environmental Control, or the Secretary's duly appointed designee; the Director of Air and Waste Management, or the Director's duly appointed designee; 2 members who will represent stationary sources; 1 to be a member of the Chemical Industry Council; a member of the Delaware State Chamber of Commerce; a member representing a public utility; 2 members of a nationally affiliated or state environmental advocacy group; and the chairpersons of the House and the Senate Natural Resource Committees. The Secretary of the Department of Natural Resources and Environmental Control shall serve as the Chair of this Committee. The Committee shall provide the Governor and the General Assembly with a report on or before February 1 of each year, for the previous calendar year, identifying the amounts and sources of fees collected pursuant to § 6097 of this title, the expenditures made by the Department to implement the Program, information regarding the performance of the Program, whether the fees collected by § 6097 of this title are adequate to ensure the effective implementation of the Program, and recommendations to remedy or improve any deficiencies or elements of the Program. The Committee shall submit its final report on or before February 1, 2006, and shall cease to exist on that date absent a further act of the General Assembly. (69 Del. Laws, c. 121, § 1; 70 Del. Laws, c. 8, § 3; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 214, §§ 2, 4; 73 Del. Laws, c. 381, § 2.)