§ 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.

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.