WSR 98-11-080

PROPOSED RULES

OLYMPIC AIR POLLUTION

CONTROL AUTHORITY

[Filed May 19, 1998, 12:55 p.m.]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 70.94.141 (i) [(1)]

Title of Rule: Amend OAPCA's Regulation 1, Article 6, Air Operating Permits

Purpose: Adjust air operating permit fees to cover program costs

Statutory Authority for Adoption: Chapter 70.94 RCW

Statute Being Implemented: RCW 70.94.141

Summary: This proposal will establish operating permit fees to cover program costs

Reasons Supporting Proposal: Air operating permit program must be adjusted to cover the costs of administrating the program

Name of Agency Personnel Responsible for Drafting: Mark Goodin, 909 Sleater Kinney Road, 438-8768; Implementation and Enforcement: Charles Peace, 909 Sleater Kinney Road, 438-8768

Name of Proponent: Olympic Air Pollution Control Authority (OAPCA), governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: This proposal would increase air operating permit fees to cover the costs of administering the program

Proposal Changes the Following Existing Rules: Operating Permit fees would increase to cover program costs

No small business economic impact statement has been prepared under chapter 19.85 RCW. This agency is not subject to the small business economic impact provision of the Administrative Procedure Act.

RCW 34.05.328 does not apply to this rule adoption. Pursuant to RCW 70.94.141 (i) [(1)], RCW 34.05.328 does not apply to this rule adoption.

Hearing Location: Olympic Air Pollution Control Authority Office, 909 Sleater Kinney Road S.E. #1, Lacey, WA 98503, on July 8, 1998, at 10:00 a.m

Assistance for Persons with Disabilities: Contact Craig Weckesser by July 3, 1998, (360) 438-8768

Submit Written Comments to: Charles Peace, FAX (360) 491-6308, by July 8, 1998

Date of Intended Adoption: August 9, 1998

May 14, 1998

Charles Peace

Executive Director

AMENDATORY SECTION

SECTION 6.00 DEFINITIONS

For purposes of Article 6, the following definitions shall apply.

actual emissions means the actual rate of emissions of a pollutant from an emission unit, as determined in accordance with (a) and (b) of this subsection.

(a) In general, actual emissions as of a particular date shall equal the rate, in tons per year, at which the emissions unit actually emitted the pollutant during a one-year period which precedes the particular date and which is representative of normal source operation. Actual emissions shall be calculated using the emission((s)) unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

(b) The Authority may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the emissions unit.

((air contaminant means dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substance, or any combination thereof. "Air pollutant" means the same as "air contaminant."

air contaminant generating equipment means, for purposes of calculating Article 6 fees, any equipment or process capable of generating or emitting air contaminants except for the equipment and processes listed in (a) through (g) below:

(a) Gasoline or other fuel storage tanks located at dispensing facilities as defined in Article 15.

(b) Storage tanks and other equipment located at dry cleaning facilities.

(c) Combustion units with less than 10 million BTUs per hour heat input.

(d) Process equipment with less than 20,000 ACFM flowrate.

(e) Paint spray booths and related paint spraying equipment.

(f) Mobile sources.

(g) Any other equipment or process determined appropriate for this exemption by the Authority.))

emissions means a release of air contaminants into the ambient air.

emissions unit means any part of a source which emits or has the potential to emit any pollutant subject to regulation.

facility means the same as "source".

potential to emit means the maximum capacity of a source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally enforceable.

source means all of the emissions unit(s) including quantifiable fugitive emissions, that are located on one or more contiguous properties, and are under the control of the same person or persons under common control, whose activities are ancillary to the production of a single product or functionally related groups of products. Activities shall be considered ancillary to the production of a single product or functionally related group of products if they belong to the same major group (i.e., which have the same two digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 Supplement.

stack means, for purposes of calculating Article 6 fees, any point in a source designed to emit solids, liquids, or gases into the air, including a pipe or duct, except for the following:

(a) Emission points associated with gasoline or fuel dispensing stations.

(b) Emission points associated with dry cleaning facilities.

(c) Pipes or ducts equal to or less than twelve (12) inches in diameter.

(d) Any other emission point determined appropriate for this exemption by the Authority.

toxic air pollutant means any Class A or Class B toxic air pollutants listed in WAC 173-460-150 and 173-460-160. The term toxic air pollutant may include particulate matter and volatile organic compounds if an individual substance or group of substances within either of these classes is listed in WAC 173-460-150 and 173-460-160. The term toxic air pollutant does not include particulate matter and volatile organic compounds as generic classes of compounds.

AMENDATORY SECTION

SECTION 6.03 OPERATING PERMIT FEES((, GENERAL.))

(a) ((Air Operating Permit Account. The Authority shall establish and maintain a dedicated account for the Air Operating Permit Program called the Air Operating Permit Account. The account shall be funded exclusively by fee revenue from sources requiring an air operating permit pursuant to RCW 70.94.161. All fee revenue collected under Article 6 shall be deposited into the Air Operating Permit Program Account. All direct and indirect costs and expenditures attributable to the Air Operating Permit Program shall be met exclusively with revenue from the Air Operating Permit Account.)) Fee Applicability. Any source in the Authority's jurisdiction subject to the requirement to obtain an Operating Permit pursuant to 40 CFR 70 or RCW 70.94.161 (major sources), except those sources for which air emissions are regulated by the Washington State Department of Ecology Industrial Section, shall pay fees to the Authority according to the provisions in this section.

(b) ((Annual Workload Analysis. On a annual basis, starting with calendar year 1994, the Authority shall conduct a workload analysis to determine the adequacy and fairness of the Article 6 fee schedules. The workload analysis shall be based on the Authority's historical record of time and resource expenditures attributable to the air operating permit program. The workload analysis shall be made available upon request to the Authority. Any proposed revisions to the annual fee schedule shall be presented to the Board for adoption after public noticing pursuant to Regulation 1 public noticing requirements and opportunity for a public hearing.)) Operating Permit Program Account. The Authority shall maintain a dedicated account for the Air Operating Permit program. The account shall be funded exclusively by fee revenue collected from major sources. All fee revenue collected under this section and all fee revenue from major sources collected under Section 7.13 shall be deposited in the Air Operating Permit account.

(c) Operating Permit Program Funding. The sum of fees assessed by the Authority under this section and fee revenue from major sources assessed under Section 7.13 shall be sufficient to cover all direct and indirect costs to develop and administer the Authority's Operating Permit Program including Ecology's cost for development and oversight of the Authority's Operating Permit Program, as provided in RCW 70.94.162.

(d) Ecology Development and Oversight Fees. The Authority shall assess an annual Ecology Development and Oversight Fee to all major sources. The total amount of Ecology Development and Oversight Fees assessed annually by the Authority shall equal Ecology's annual cost of development and oversight of the Authority's Operating Permit Program, as provided in RCW 70.94.162.

(e) Notice of Construction Fees. The Authority shall assess Notice of Construction Fees to all major sources according to Section 7.13 of Regulation 1.

(f) Annual Fees, Existing Major Sources. The Authority shall assess an Annual Fee to all existing major sources. The total amount of Annual Fees assessed by the Authority to existing major sources shall equal the projected net annual cost to administer the Authority's Operating Permit Program during the current fiscal year.

(g) Net Annual Cost Projections. Projected net annual cost to administer the Authority's Operating Permit Program shall be determined annually and shall equal the projected annual cost to administer the program minus any balance of funds in the Operating Permit Program account at the end of the previous fiscal year. Projected annual costs shall include all direct and indirect costs to administer the Authority's Operating Permit Program and shall be based on a workload analysis conducted by staff. Net annual cost projections including the workload analysis shall be included in the Authority's annual budget and approved by resolution of the Authority's Board of Directors in a public hearing.

(h) Workload Analysis. Only fee eligible activities as specified below, as provided in RCW 70.94.162, shall be considered in the workload analysis conducted annually by staff. Fee eligible activities shall include:

(1) Preapplication assistance and review of an application and proposed compliance plan for a permit, permit revision or permit renewal;

(2) Source inspections, testing and other data gathering activities necessary for development of a permit, permit revision or renewal;

(3) Acting on an application for a permit, permit revision or renewal, including the cost of developing an applicable requirement as part of the processing of a permit, permit revision or renewal, preparing a draft permit and fact sheet, preparing a proposed permit and preparing a final permit;

(4) Notifying and soliciting, reviewing and responding to comment from the public and contiguous states and tribes, conducting public hearings regarding the issuance of a draft permit and other costs of providing information to the public regarding operating permits and the permit issuance process;

(5) Modeling necessary to establish permit limits or to determine compliance with permit limits:

(6) Reviewing compliance certifications and emission reports, conducting related compilation and reporting activities;

(7) Conducting compliance inspections, complaint investigations and other activities necessary to ensure that a source is complying with permit conditions;

(8) Administrative enforcement activities and penalty assessment, excluding the cost of proceedings before the Pollution Control Hearings Board (PCHB) and all costs of judicial enforcement;

(9) The share attributable to permitted sources to the development and maintenance of emissions inventories;

(10) The share attributable to permitted sources of the ambient air quality monitoring and associated recording and reporting activities;

(11) Training for permit administration and enforcement;

(12) Fee determination, assessment and collection, including the cost of necessary administrative dispute resolution and enforcement;

(13) Required fiscal audits, periodic performance audits and reporting activities;

(14) Tracking of time, revenues and expenditures and accounting activities;

(15) Administering the permit program including costs of clerical support, supervision and management;

(16) Provision of assistance to small business under jurisdiction of the Authority as required under Section 507 of the Federal Clean Air Act; and,

(17) Other activities required by operating permit regulations issued by EPA under the Federal Clean Air Act.

(i) Allocation of Fees. The Annual Fee for a source shall be calculated using the following three part fee allocation equation:

new table

TABLE 6.1: OPERATING PERMIT FEE FORMULAS

(j) Initial Fees. New major sources shall be assessed an Initial Fee after commencement of operation to cover the Authority's cost of administering the program for the new source for the remainder of the current fiscal year. The Initial Fee for a new source shall equal the Annual Fee based on section 6.03(i), which would otherwise be assessed if the source commenced operation on or prior to the beginning of the current fiscal year, prorated by multiplying by the number of months remaining in the current fiscal year divided by 12.

(k) Fee Assessment and Payment Schedule. The Authority shall assess Annual Fees after August 1 of each year to cover the cost of administering the program for the current fiscal year commencing on July 1 and ending on June 30. Upon receipt, Annual Fees are due and payable and shall be deemed delinquent if not fully paid within thirty (30) days. However, option shall be given to pay Annual Fees in quarterly installments. Owners or operators may choose to pay their Annual Fees in quarterly installments by indicating so on the fee invoice received and remitting payment of the first quarterly installment back to the Authority. These installments shall be due October 1, January 1, and April 1, following initial payment. Quarterly installments shall be equal to twenty-five percent (25%) of the total fee.

(l) Late Payment. Any source which does not pay the Annual Fee or installment within thirty (30) days of the due date shall be assessed a late penalty equal to twenty-five percent (25%) of the fee amount due. Any penalty shall be in addition to the fee amount due.

(m) Appeal of Annual Fees. Annual Fees may be appealed according to the procedure specified in section 3.17 of Regulation 1. The basis for such appeals shall be limited to arithmetic or clerical errors.

(n) Exemption for Article 5 Fees. Sources assessed fees shall not be subject to annual Registration Program Fees under Article 5 of Regulation 1.

(o) Transfer of Ownership. Transfer of ownership of a source shall not affect that source's obligation to pay fees required by this section. Any liability for fee payment, including payment of delinquent fees and other penalties shall survive any transfer of ownership of a source.

(p) Accountability. The sum of the fees assessed by the Authority to all major sources within the Authority's jurisdiction shall not exceed the cost of developing and administering the program. The Authority shall keep record of all direct and indirect costs to develop and administer the Operating Permit Program as specified in 40 CFR part 70. This information shall be used by the Authority in determining the net annual cost projections required by 6.03(g) above. Provided, however, the information obtained from tracking revenues, time, and expenditures shall not provide a basis for challenge to the amount of an individual source's fee.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

DELETED SECTION

SECTION 6.04 ANNUAL FEES.

The Authority shall assess an annual air operating permit program fee according to section 6.04 subparts (a) through (g) below to any source requiring an air operating permit pursuant to RCW 70.94.161.

(a) Effective Date. Section 6.04 fees shall become effective commencing the date the Authority receives delegation from the Washington Department of Ecology to administer the air operating permit program.

(b) Fee Schedule. The annual air operating permit program fee charged a source shall consist of the sum of;

(1) a facility fee of an amount as indicated in Table 6.3 applicable to all sources subject to the annual air operating permit program fee; and

(2) a generating equipment fee of an amount as indicated in Table 6.3 for each item of air contaminant generating equipment located at the source; and

(3) a stack fee of an amount as indicated in Table 6.3 for each stack located at the source; and

(4) An emissions fee of an amount as indicated in Table 6.3 per ton of each air contaminant listed in Table 6.2 emitted by the source in excess of ten tons, evaluated on a pollutant by pollutant basis, during the previous calendar year; and

(5) a class fee of an amount as specified in Table 6.3; and

(6) a source specific monitoring fee of an amount as specified in Table 6.3 if ambient monitoring is a requirement for the source; and

(7) An agency oversight fee of an amount as determined by the Washington Department of Ecology (DOE) to recover DOE's cost of development and oversight of the air operating permit program.

TABLE 6.3: ANNUAL FEES FOR AIR OPERATING PERMIT SOURCES

TABLE 6.3 NOTES:

1) "na" means non-applicable.

2) Annual air operating permit program fees for general operating permit program sources will be adopted separately after general operating permits are developed and adopted.

(c) Assessment of Annual Fees. The annual air operating permit program fee charged a source shall be assessed according to section 6.04(c) items (1) through (4) below:

(1) The Authority shall assess annual air operating permit fees after August 1 of each year to cover the direct and indirect cost of administering the program for the current fiscal year commencing on July 1 and ending on June 30.

(2) The annual fees required by this section shall be based on process rates, equipment specifications, and emissions data from the previous calendar year on file with the Authority. For purposes of assessing annual fees, the Authority shall consider updates and revisions to any source's file received prior to August 1 of the current year. If process rates, equipment specifications, and emissions data from the previous calendar year is not on file with the Authority, the Authority may base the annual fee on the enforceable emissions limitations for the source and maximum capacities and production rates.

(3) The authority shall assess the emissions fee based on actual emissions from the source which occurred during the previous calendar year when available.

(4) For purposes of assessing annual fees, definitions for air contaminant generating equipment and stack shall be consistent with the definitions in section 6.00, and air contaminant generating equipment and stacks which are identical in size, capacity, function, and emissions may be counted as one unit as approved by the Authority.

(d) Payment of Annual Fees. Upon assessment by the Authority, annual fees are due and payable and shall be deemed delinquent if not fully paid within thirty (30) days. However, sources classified as OP1, OP2, or OP4 shall be given the option to pay their annual fee in quarterly installments. Sources may choose to pay their annual fees in quarterly installments by indicating so on the first invoice received and remitting payment of the first installment back to the Authority along with the duplicate copy of the invoice. Quarterly installments shall be equal to 25% of the total annual registration fee. Installments shall be due 30 days from assessment by the Authority.

(e) Late Payment of Annual Fees. Any source which does not pay their annual fee or annual fee installment within thirty (30) days of the due date, shall be assessed a late penalty in the amount of twenty-five percent of their annual fee. This late penalty shall be in addition to the annual fee.

(f) Appeal of Annual Fees. Annual fees may be appealed according to the procedure specified in section 3.17. The sole basis for such appeals shall be that the annual fee assessment contains an arithmetic or clerical error.

(g) Applicability of Article 5 Registration Fees. Sources assessed an annual operating permit fee shall not be subject to annual Registration Program Fees under Article 5.

DELETED SECTION

SECTION 6.05 SERVICE FEES FOR OPERATING PERMIT MODIFICATIONS AND APPEALS.

Effective starting the date upon which the Authority receives delegation to administer the air operating permit program pursuant to Title 5 of the federal Clean Air Act Amendments and RCW 70.94.161, the Authority shall charge fees, separate and additional to annual fees, to sources applying for modification, minor modification, or administrative modification of an operating permit, and for services associated with an appeal of a proposed or approved operating permit. For purposes of assessing fees under this section, the terms "modification", "minor modification", "administrative modification", and "permit appeal" shall be defined consistent with definitions in title V of the Federal Clean Air Act Amendments and RCW 70.94.161. Fees charged by the Authority under this section shall be assessed according to subsections (a) through (f) of this section and shall cover the direct and indirect costs of providing these services pursuant to RCW 70.94.161.

(a) Operating Permit Modification Fees - All sources applying for modification of an operating permit shall be assessed a fee consisting of the sum of a "application filing fee", "generating equipment fee", "stack fee", "emissions fee", and "class fee" according to (1) through (6) of this subsection and amounts as specified in Table 6.4. The full fee for a modification application shall be assessed by the Authority after receipt of a complete application and shall be due and payable within 30 days. However, the Authority shall not commence processing an application for modification until, at a minimum, the application filing fee portion of the total fee amount has been paid.

(1) All Sources applying for modification of an operating permit shall pay an application filing fee of an amount as specified in Table 6.4; and

(2) A generating equipment fee of an amount as specified in Table 6.4 for each item of air contaminant generating equipment located at the source which is directly or indirectly affected by the proposed modification; and

(3) A stack fee of an amount as indicated in Table 6.4 for each stack located at the source which is directly or indirectly affected by the proposed modification; and

(4) An emissions fee of an amount as indicated in Table 6.4 per ton of each air contaminant listed in Table 6.2 emitted by the source in excess of ten tons, evaluated on a pollutant by pollutant basis, during the previous calendar year; and

(5) A class fee of an amount as specified in Table 6.4.

(6) The authority shall assess the emissions fee based on the sum of actual emissions from stacks and/or generating equipment for the last calendar year directly or indirectly affected by the proposed modification and potential annual emissions from proposed new emissions units. If actual emissions data for the last calendar year is not on record with the Authority, the Authority may base the emissions fee on the enforceable emissions limitations which apply to the source and maximum capacities and production rates.

(b) Minor Modification Fees - All sources applying for a minor modification of an operating permit shall pay a fee of an amount dependent on the classification of the source as indicated in Table 6.4. The fee for processing a minor permit modification application shall be assessed by the Authority after receipt of a complete application and shall be due and payable within 30 days.

(c) Administrative Modification Fee - All sources applying for an administrative modification of an operating permit shall pay a fee of an amount dependent on the classification of the source as indicated in Table 6.4. The fee for processing an administrative permit modification application shall be assessed by the Authority after receipt of a complete application and shall be due and payable within 30 days.

(d) Operating Permit Appeal Fee - The cost of Authority services directly or indirectly attributable to an operating permit appeal case shall be charged directly to the associated source at the rates as specified in Table 6.4. On a monthly basis, the Authority shall determine the cost of services provided by the Authority which are attributable to the operating permit appeal case and bill the source accordingly. Included in the billing invoice, the Authority shall provide a record of the time the Authority attributed to the case. Payment of the appeal fee shall be due 30 days after the Authority assesses the fee.

(e) Payment of Service Fees. Upon assessment by the Authority, fees charged under section 6.05 are due and payable and shall be deemed delinquent if not fully paid within thirty (30) days.

(f) Appeal of Service Fees. Any fee assessed under section 6.05 may be appealed according to the procedure specified in section 3.17. The sole basis for such appeals shall be that the fee assessment contains an arithmetic or clerical error.

TABLE 6.4: OPERATING PERMIT SERVICE FEES

AMENDATORY SECTION

SECTION 6.06 RESTRICTING THE POTENTIAL TO EMIT

A service based fee, additional to annual registration or operating permit fees, shall be assessed to those sources applying to the Authority for approval of enforceable conditions that restrict the source's potential to emit, making the source a minor source and not subject to an operating permit. Fees for restricting a source's potential to emit shall be assessed ((upon application and)) according to ((the)) Article 7, section 7.13((, Plan Examination and Inspection fee schedule)). The Authority shall assess the fee based on only those emissions units affected by the enforceable condition as proposed by the applicant.

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