AN ACT Relating to fee structures of the air
quality stationary source permit programs; amending RCW 70.94.015, 70.94.030,
70.94.151, 70.94.152, and 70.94.161; and adding new sections to chapter 70.94
RCW.
BE
IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1.
RCW 70.94.015 and 1991 c 199 s 228 are each amended to read as follows:
(1) The air pollution control account is
established in the state treasury. All receipts collected by or on behalf
of the department from RCW 70.94.151(2), and receipts from nonpermit program
sources under RCW 70.94.152(1) and section 8(7) of this act, and all receipts
from RCW 70.94.650, 70.94.660, 82.44.020(3), and 82.50.405 shall be deposited
into the account. Moneys in the account may be spent only after
appropriation. Expenditures from the account may be used only to develop and
implement the provisions of ((this act and)) chapters 70.94 and 70.120
RCW.
(2) The amounts collected and allocated in
accordance with this section shall be expended upon appropriation except as
otherwise provided in this section and in accordance with the following
limitations:
Portions of moneys received by the department
of ecology from the air pollution control account shall be distributed by the
department to local authorities based on:
(a) The level and extent of air quality
problems within such authority's jurisdiction;
(b) The costs associated with implementing air
pollution regulatory programs by such authority; and
(c) The amount of funding available to such
authority from other sources, whether state, federal, or local, that could be
used to implement such programs.
(3) The air operating permit account is created
in the custody of the state treasurer. All receipts ((paid to the
department of revenue)) collected by or on behalf of the department from
permit program sources under RCW 70.94.152(1), 70.94.161, and
sections 6 and 8(7) of this act shall be deposited into the account.
Expenditures from the account may be used only for the ((direct and indirect
costs of implementing the air operating permit program under)) activities
described in RCW 70.94.152(1), 70.94.161, and sections 6 and 8(7)
of this act. ((Only the director of the department of ecology or the
director's designee may authorize expenditures from the account. The account
is subject to the allotment procedures under chapter 43.88 RCW, but no)) Moneys
in the account may be spent only after appropriation ((is required for
such expenditures)).
Sec. 2.
RCW 70.94.030 and 1991 c 199 s 103 are each amended to read as follows:
Unless a different meaning is plainly required
by the context, the following words and phrases as hereinafter used in this
chapter shall have the following meanings:
(1) "Air contaminant" means dust,
fumes, mist, smoke, other particulate matter, vapor, gas, odorous substance, or
any combination thereof.
(2) "Air pollution" is presence in
the outdoor atmosphere of one or more air contaminants in sufficient quantities
and of such characteristics and duration as is, or is likely to be, injurious
to human health, plant or animal life, or property, or which unreasonably
interfere with enjoyment of life and property. For the purpose of this
chapter, air pollution shall not include air contaminants emitted in compliance
with chapter 17.21 RCW.
(3) "Air quality standard" means an
established concentration, exposure time, and frequency of occurrence of an air
contaminant or multiple contaminants in the ambient air which shall not be
exceeded.
(4) "Ambient air" means the
surrounding outside air.
(5) "Authority" means any air
pollution control agency whose jurisdictional boundaries are coextensive with
the boundaries of one or more counties.
(6) "Best available control
technology" (BACT) means an emission limitation based on the maximum
degree of reduction for each air pollutant subject to regulation under this
chapter emitted from or that results from any new or modified stationary
source, that the permitting authority, on a case-by-case basis, taking into
account energy, environmental, and economic impacts and other costs, determines
is achievable for such a source or modification through application of
production processes and available methods, systems, and techniques, including
fuel cleaning, clean fuels, or treatment or innovative fuel combustion
techniques for control of each such a pollutant. In no event shall application
of "best available control technology" result in emissions of any
pollutants that will exceed the emissions allowed by any applicable standard
under 40 C.F.R. Part 60 and Part 61, as they exist on the effective date of
this act, or their later enactments as adopted by reference by the director by
rule. Emissions from any source utilizing clean fuels, or any other means, to
comply with this subsection shall not be allowed to increase above levels that
would have been required under the definition of BACT as it existed prior to
enactment of the clean air act amendments of 1990.
(7) "Best available retrofit
technology" (BART) means an emission limitation based on the degree of
reduction achievable through the application of the best system of continuous
emission reduction for each pollutant that is emitted by an existing stationary
facility. The emission limitation must be established, on a case-by-case
basis, taking into consideration the technology available, the costs of
compliance, the energy and nonair quality environmental impacts of compliance,
any pollution control equipment in use or in existence at the source, the
remaining useful life of the source, and the degree of improvement in
visibility that might reasonably be anticipated to result from the use of the
technology.
(8) "Board" means the board of
directors of an authority.
(((7))) (9) "Control
officer" means the air pollution control officer of any authority.
(((8))) (10)
"Department" or "ecology" means the department of
ecology.
(((9))) (11) "Emission"
means a release of air contaminants into the ambient air.
(((10))) (12) "Emission
standard" ((means a limitation on the release of an air contaminant or
multiple contaminants into the ambient air)) and "emission
limitation" mean a requirement established under the federal clean air act
or this chapter that limits the quantity, rate, or concentration of emissions
of air contaminants on a continuous basis, including any requirement relating
to the operation or maintenance of a source to assure continuous emission
reduction, and any design, equipment, work practice, or operational standard
adopted under the federal clean air act or this chapter.
(((11))) (13) "Lowest achievable
emission rate" (LAER) means for any source that rate of emissions that
reflects:
(a) The most stringent emission limitation
that is contained in the implementation plan of any state for such class or
category of source, unless the owner or operator of the proposed source
demonstrates that such limitations are not achievable; or
(b) The most stringent emission limitation
that is achieved in practice by such class or category of source, whichever is
more stringent.
In no event shall the application of this
term permit a proposed new or modified source to emit any pollutant in excess
of the amount allowable under applicable new source performance standards.
(14) "Modification" means any
physical change in, or change in the method of operation of, a stationary
source that increases the amount of any air contaminant emitted by such source
or that results in the emission of any air contaminant not previously emitted.
The term modification shall be construed consistent with the definition of
modification in Section 7411, Title 42, United States Code, and with rules
implementing that section.
(15) "Multicounty authority"
means an authority which consists of two or more counties.
(((12))) (16) "New source"
means (a) the construction or modification of a stationary source that
increases the amount of any air contaminant emitted by such source or that
results in the emission of any air contaminant not previously emitted, and (b)
any other project that constitutes a new source under the federal clean air
act.
(17) "Permit program source" means
a source required to apply for or to maintain an operating permit under RCW
70.94.161.
(18) "Person" means an
individual, firm, public or private corporation, association, partnership,
political subdivision of the state, municipality, or governmental agency.
(((13))) (19) "Reasonably
available control technology" (RACT) means the lowest emission limit that
a particular source or source category is capable of meeting by the application
of control technology that is reasonably available considering technological
and economic feasibility. RACT is determined on a case-by-case basis for an
individual source or source category taking into account the impact of the
source upon air quality, the availability of additional controls, the emission
reduction to be achieved by additional controls, the impact of additional
controls on air quality, and the capital and operating costs of the additional
controls. RACT requirements for a source or source category shall be adopted
only after notice and opportunity for comment are afforded.
(20) "Silvicultural burning"
means burning of wood fiber on forest land consistent with the provisions of
RCW 70.94.660.
(21) "Source" means all of the
emissions units including quantifiable fugitive emissions, that are located on
one or more contiguous or adjacent 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 group of products.
(22) "Stationary source" means any
building, structure, facility, or installation that emits or may emit any air
contaminant.
Sec. 3.
RCW 70.94.151 and 1987 c 109 s 37 are each amended to read as follows:
(1) The board of any activated authority or the
department, may classify air contaminant sources, by ordinance, resolution,
rule or regulation, which in its judgment may cause or contribute to air
pollution, according to levels and types of emissions and other characteristics
which cause or contribute to air pollution, and may require registration or
reporting or both for any such class or classes. Classifications made pursuant
to this section may be for application to the area of jurisdiction of such
authority, or the state as a whole or to any designated area within the
jurisdiction, and shall be made with special reference to effects on health,
economic and social factors, and physical effects on property.
(2) Any person operating or responsible for the
operation of air contaminant sources of any class for which the ordinances,
resolutions, rules or regulations of the department or board of the authority,
require registration and reporting shall register therewith and make reports
containing information as may be required by such department or board
concerning location, size and height of contaminant outlets, processes
employed, nature of the contaminant emission and such other information as is
relevant to air pollution and available or reasonably capable of being
assembled. The department or board may require that such registration be
accompanied by a fee and may determine the amount of such fee for such class or
classes: PROVIDED, That the amount of the fee shall only be to compensate for
the costs of administering such registration program which shall be defined as
initial registration and annual or other periodic reports from the source owner
providing information directly related to air pollution registration, on-site
inspections necessary to verify compliance with registration requirements, data
storage and retrieval systems necessary for support of the registration
program, emission inventory reports and emission reduction credits computed
from information provided by sources pursuant to registration program
requirements, staff review, including engineering analysis for accuracy and
currentness, of information provided by sources pursuant to registration
program requirements, clerical and other office support provided in direct
furtherance of the registration program, and administrative support provided in
directly carrying out the registration program: PROVIDED FURTHER, That any
such registration made with either the board or the department shall preclude a
further registration with any other board or the department.
All registration program fees collected by
the department shall be deposited in the air pollution control account. All
registration program fees collected by the local air authorities shall be
deposited in their respective treasuries.
Sec. 4. RCW
70.94.152 and 1991 c 199 s 302 are each amended to read as follows:
(1) The department of ecology or board of any
authority may require notice of the establishment of any proposed new sources
except single family and duplex dwellings. The department of ecology or board
may require such notice to be accompanied by a fee and determine the amount of
such fee: PROVIDED, That the amount of the fee may not exceed the cost of
reviewing the plans, specifications, and other information and administering
such notice: PROVIDED FURTHER, That any such notice given or notice of
construction application submitted to either the board or to the department of
ecology shall preclude a further submittal of a duplicate application to any
board or to the department of ecology.
(2) The department shall, after opportunity
for public review and comment, adopt rules that establish a workload-driven
process for determination and review of the fee covering the direct and
indirect costs of processing a notice of construction application and a
methodology for tracking revenues and expenditures. All new source fees
collected by the department from permit program sources shall be deposited in
the air operating permit account. All new source fees collected by the
delegated local air authorities from permit program sources shall be deposited
in the dedicated accounts of their respective treasuries. All new source fees
collected by the department from nonpermit program sources shall be deposited
in the air pollution control account. All new source fees collected by local
air authorities from nonpermit program sources shall be deposited in their
respective treasuries.
(3) Within thirty days of receipt of a
notice of construction application, the department of ecology or board may require,
as a condition precedent to the establishment of the new source or sources
covered thereby, the submission of plans, specifications, and such other
information as it deems necessary to determine whether the proposed new source
will be in accord with applicable rules and regulations in force under this
chapter. If on the basis of plans, specifications, or other information
required under this section the department of ecology or board determines that
the proposed new source will not be in accord with this chapter or the
applicable ordinances, resolutions, rules, and regulations adopted under this
chapter, it shall issue an order denying permission to establish the new
source. If on the basis of plans, specifications, or other information
required under this section, the department of ecology or board determines that
the proposed new source will be in accord with this chapter, and the applicable
rules and regulations adopted under this chapter, it shall issue an order of
approval for the establishment of the new source or sources, which order may
provide such conditions as are reasonably necessary to assure the maintenance
of compliance with this chapter and the applicable rules and regulations
adopted under this chapter. Every order of approval under this chapter must be
reviewed prior to issuance by a professional engineer or staff under the
supervision of a professional engineer in the employ of the department of
ecology or board.
(((2))) (4) The determination
required under subsection (((1))) (3) of this section shall
include a determination of whether the operation of the new air contaminant
source at the location proposed will cause any ambient air quality standard to
be exceeded.
(((3))) (5) New source review of
a modification shall be limited to the emission unit or units proposed to be
modified and the air contaminants whose emissions would increase as a result of
the modification.
(((4))) (6) Nothing in this
section shall be construed to authorize the department of ecology or board to
require the use of emission control equipment or other equipment, machinery, or
devices of any particular type, from any particular supplier, or produced by
any particular manufacturer.
(((5))) (7) Any features,
machines, and devices constituting parts of or called for by plans,
specifications, or other information submitted pursuant to subsection (1) or
(3) of this section shall be maintained and operate in good working order.
(((6))) (8) The absence of an ordinance,
resolution, rule, or regulation, or the failure to issue an order pursuant to
this section shall not relieve any person from his or her obligation to comply
with applicable emission control requirements or with any other provision of
law.
(((7))) (9) Within thirty days of
receipt of a notice of construction application the department of ecology or
board shall either notify the applicant in writing that the application is
complete or notify the applicant in writing of all additional information necessary
to complete the application. Within sixty days of receipt of a complete
application the department or board shall either (a) issue a final decision on
the application, or (b) for those projects subject to public notice, initiate
notice and comment on a proposed decision, followed as promptly as possible by
a final decision. A person seeking approval to construct or modify a source
that requires an operating permit may elect to integrate review of the
operating permit application or amendment required by RCW 70.94.161 and the
notice of construction application required by this section. A notice of
construction application designated for integrated review shall be processed in
accordance with operating permit program procedures and deadlines.
(10) Best available control technology
(BACT) is required for new sources except where the federal clean air act
requires compliance with the lowest achievable emission rate (LAER).
Sec. 5.
RCW 70.94.161 and 1991 c 199 s 301 are each amended to read as follows:
The department of ecology, or board of an
authority, shall require renewable permits for the operation of air contaminant
sources subject to the following conditions and limitations:
(1) ((Unless a different meaning is plainly
required by the context, the following words and phrases shall have the
following meanings:
(a) "Lowest achievable emission rate"
(LAER) means for any source that rate of emissions which reflects:
(i) The most stringent emission limitation that
is contained in the implementation plan of any state for such class or category
of source, unless the owner or operator of the proposed new or modified source
demonstrates that such limitations are not achievable; or
(ii) The most stringent emission limitation
that is achieved in practice by such class or category of source, whichever is
more stringent.
In no event shall the application of this term
permit a proposed new or modified source to emit any pollutant in excess of the
amount allowable under applicable new source performance standards.
(b) "Best available control
technology" (BACT) means technology that will result in an emission
limitation, including a visible emission standard, based on the maximum degree
of reduction for each air pollutant subject to this regulation that would be
emitted from any proposed new or modified source that the permitting authority,
on a case-by-case basis, taking into account energy, environmental, and
economic impacts and other costs, determines is achievable for such sources or
modification through application of production processes, available methods,
systems, and techniques, including fuel cleaning or treatment or innovative
fuel combustion techniques for control of such air pollutant. In no event
shall application of the best available technology result in emissions of any
air pollutant that would exceed the emissions allowed by any applicable
standard under 40 C.F.R. Part 60 and Part 61. If the reviewing agency
determines that technological or economic limitations on the application of
measurement methodology to a particular class of sources would make the
imposition of an emission standard infeasible, it may instead prescribe a
design, equipment, work practice, or operational standard, or combination
thereof, to meet the requirement of best available control technology. Such
standard shall, to the degree possible, set forth the emission reduction
achievable by implementation of such design, equipment, work practice, or
operation and shall provide for compliance by means that achieve equivalent
results. The term "all known available and reasonable methods of emission
control" is interpreted to mean the same as best available control
technology.
(c) "Reasonably available control
technology" (RACT) means the lowest emission limit that a particular
source or source category is capable of meeting by the application of control
technology that is reasonably available considering technological and economic
feasibility. RACT is determined on a case-by-case basis for an individual
source or source category taking into account the impact of the source upon air
quality, the availability of additional controls, the emission reduction to be
achieved by additional controls, the impact of additional controls on air
quality, and the capital and operating costs of the additional controls. RACT
requirements for any source or source category shall be adopted only after
notice and opportunity for comment are afforded.
(d) "Source" means all of the
emissions units including quantifiable fugitive emissions, that are located on
one or more contiguous or adjacent 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 group of products.
(e) "New source" means (i) the
construction or modification of a stationary source that increases the amount
of any air contaminant emitted by such source or that results in the emission
of any air contaminant not previously emitted, and (ii) any other project that
constitutes a new source under the federal clean air act.
(f) "Stationary source" means any
building, structure, facility, or installation that emits or may emit any air
contaminant.
(g) "Modification" means any physical
change in, or change in the method of operation of, a stationary source that
increases the amount of any air contaminant emitted by such source or that
results in the emission of any air contaminant not previously emitted. The
term modification shall be construed consistent with the definition of
modification in Section 7411, Title 42, United States Code, and with rules
implementing that section.
(2)))
Permits shall be issued for a term of five years. A permit may be modified or
amended during its term at the request of the permittee, or for any reason
allowed by the federal clean air act. The rules adopted pursuant to subsection
(((3))) (2) of this section shall include rules for permit
amendments and modifications. The terms and conditions of a permit shall
remain in effect after the permit itself expires if the permittee submits a
timely and complete application for permit renewal.
(((3))) (2)(a) Rules establishing
the elements for a state-wide operating permit program and the process for
permit application and renewal consistent with federal requirements shall be
established by the department by January 1, 1993. The rules shall provide that
every proposed permit must be reviewed prior to issuance by a professional
engineer or staff under the direct supervision of a professional engineer in
the employ of the permitting authority. The permit program established by
these rules shall be administered by the department and delegated local air
authorities. Rules developed under this subsection shall not preclude a
delegated local air authority from including in a permit its own more stringent
emission standards and operating restrictions.
(b) The board of any local air pollution
control authority may apply to the department of ecology for a delegation order
authorizing the local authority to administer the operating permit program for
sources under that authority's jurisdiction. The department shall, by order,
approve such delegation, if the department finds that the local authority has
the technical and financial resources, to discharge the responsibilities of a
permitting authority under the federal clean air act. A delegation request
shall include adequate information about the local authority's resources to
enable the department to make the findings required by this subsection;
provided, any delegation order issued under this subsection shall take effect
ninety days after the environmental protection agency authorizes the local
authority to issue operating permits under the federal clean air act.
(c) Except for the authority granted the energy
facility site evaluation council to issue permits for the new construction,
reconstruction, or enlargement or operation of new energy facilities under
chapter 80.50 RCW, the department may exercise the authority, as delegated by
the environmental protection agency, to administer Title IV of the federal
clean air act as amended and to delegate such administration to local
authorities as applicable pursuant to (b) of this subsection.
(((4) "Best available control
technology" (BACT) is required for new sources except where LAER is
required.
Until July 1, 1993, "lowest achievable
emission rate" (LAER) is required solely for those sources required by the
federal clean air act. By December 1, 1992, the department shall recommend
control technology requirements for new sources to the appropriate standing
committees of the legislature.
Except as otherwise provided in RCW
70.94.331(9), "reasonably available control technology" (RACT) is
required for existing sources.))
(3) In establishing technical standards,
defined in ((subsection (2) of this section)) RCW 70.94.030, the
permitting authority shall consider and, if found to be appropriate, give
credit for waste reduction within the process.
(((5))) (4) Operating permits
shall apply to all sources (a) where required by the federal clean air act, and
(b) for any source that may cause or contribute to air pollution in such
quantity as to create a threat to the public health or welfare. Subsection (b)
of this subsection is not intended to apply to small businesses except when
both of the following limitations are satisfied: (i) The source is in an area
exceeding or threatening to exceed federal or state air quality standards; and
(ii) the department provides a reasonable justification that requiring a source
to have a permit is necessary to meet a federal or state air quality standard,
or to prevent exceeding a standard in an area threatening to exceed the
standard. For purposes of this subsection "areas threatening to exceed
air quality standards" shall mean areas projected by the department to
exceed such standards within five years. Prior to identifying threatened areas
the department shall hold a public hearing or hearings within the proposed areas.
(((6))) (5) Sources operated by
government agencies are not exempt under this section.
(((7) By October 1, 1993, or ninety)) (6)
Within one hundred eighty days after the United States environmental
protection agency approves the state operating permit program, ((whichever
is later, any)) a person required to have a permit shall submit to
the permitting ((agency)) authority a compliance plan and permit
application, signed by a responsible official, certifying the accuracy of the
information submitted. Until permits are issued, existing sources shall be
allowed to operate under presently applicable standards and conditions provided
that such sources submit complete and timely permit applications.
(((8))) (7) All ((proposed))
draft permits shall be subject to public notice and comment. The rules
adopted pursuant to subsection (((3))) (2) of this section shall
specify procedures for public notice and comment. Such procedures shall
provide the permitting agency with an opportunity to respond to comments received
from interested parties prior to the time that the proposed permit is submitted
to the environmental protection agency for review pursuant to section 505(a) of
the federal clean air act. In the event that the environmental protection
agency objects to a proposed permit pursuant to section 505(b) of the federal
clean air act, the permitting authority shall not issue the permit, unless the
permittee consents to the changes required by the environmental protection
agency.
(((9))) (8) The procedures contained
in chapter 43.21B RCW shall apply to permit appeals. The pollution control
hearings board may stay the effectiveness of any permit issued under this
section during the pendency of an appeal filed by the permittee, if the
permittee demonstrates that compliance with the permit during the pendency of
the appeal would require significant expenditures that would not be necessary
in the event that the permittee prevailed on the merits of the appeal.
(((10))) (9) After the effective
date of any permit program promulgated under this section, it shall be unlawful
for any person to: (a) Operate a permitted source in violation of any
requirement of a permit issued under this section; or (b) fail to submit a
permit application at the time required by rules adopted under subsection (((3)))
(2) of this section.
(((11))) (10) Each air operating
permit shall state the origin of and specific legal authority for each
requirement included therein. Every requirement in an operating permit shall
be based upon the most stringent of the following requirements:
(a) The federal clean air act and rules
implementing that act, including provision of the approved state implementation
plan;
(b) This chapter and rules adopted thereunder;
((and))
(c) In permits issued by a local air pollution
control authority, the requirements of any order or regulation adopted by that
authority;
(d) Chapter 70.98 RCW and rules adopted
thereunder; and
(e) Chapter 80.50 RCW and rules adopted
thereunder.
(((12))) (11) Consistent with the
provisions of the federal clean air act, the permitting authority may issue
general permits covering categories of permitted sources, and temporary permits
authorizing emissions from similar operations at multiple temporary locations.
(((13) Permitted)) (12) Permit
program sources within the territorial jurisdiction of an authority
delegated the operating permit program shall file their permit applications
with that authority, except that permit applications for sources regulated on a
state-wide basis pursuant to RCW 70.94.395 shall be filed with the department.
((Permitted)) Permit program sources outside the territorial
jurisdiction of a delegated authority shall file their applications with the
department. Permit program sources subject to chapter 80.50 RCW shall,
irrespective of their location, file their applications with the energy
facility site evaluation council.
(((14))) (13) When issuing
operating permits to coal fired electric generating plants, the permitting
authority shall ((give consideration to the federal time lines for the
implementation of required control technology)) establish requirements
consistent with Title IV of the federal clean air act.
(((15))) (14)(a) The
department and the local air authorities are authorized to assess and to
collect, and each source emitting one hundred tons or more per year of a
regulated pollutant shall pay an interim assessment ((of ten dollars per ton
multiplied by the annual process-related emissions of each regulated pollutant
emitted during calendar years 1990 and 1991. "Regulated pollutant"
shall have the same meaning as defined in section 502(b) of the federal clean
air act amendments of 1990)) to fund the development of the operating
permit program during fiscal year 1994.
(b) ((Fees collected under (a) of this
subsection shall be distributed as follows: Eighty percent to the department
and twenty percent to local air authorities.
(c))) The
department shall conduct a workload analysis and prepare an operating permit
program development budget for fiscal year 1994. The department shall allocate
among all sources emitting one hundred tons or more per year of a regulated
pollutant during calendar year 1992 the costs identified in its program
development budget according to a three-tiered model, with each of the three
tiers being equally weighted, based upon:
(i) The number of sources;
(ii) The complexity of sources; and
(iii) The size of sources, as measured by
the quantity of each regulated pollutant emitted by the source.
(c) Each local authority and the department
shall collect from sources under their respective jurisdictions the interim fee
determined by the department and shall remit the fee to the department.
(d) Each local authority may, in addition,
allocate its fiscal year 1994 operating permit program development costs among
the sources under its jurisdiction emitting one hundred tons or more per year
of a regulated pollutant during calendar year 1992 and may collect an interim
fee from these sources. A fee assessed pursuant to this subsection (14)(d)
shall be collected at the same time as the fee assessed pursuant to (c) of this
subsection.
(e) The fees assessed to a source under
(((a) of)) this subsection ((and any fees enacted under subsection
(16) of this section)) shall be limited to the first seven thousand five
hundred tons for each regulated pollutant per year.
(((16) On or before November 1, 1992, the
department, in consultation with the department of revenue, shall report to the
appropriate standing committees of the legislature recommendations on air
operating permit fees. The department shall recommend a level of fees to cover
the direct and indirect costs of implementing the operating permit program
required under the 1990 federal clean air act. In making such recommendations,
the department shall address:
(a) The costs of the permit program elements as
identified in regulations promulgated by the United States environmental
protection agency, including, as applicable:
(i) Oversight of a delegated local air
authority;
(ii) Ambient air monitoring, modeling, and
reporting;
(iii) Training;
(iv) Data management and quality assurance;
(v) Development of state implementation plans;
(vi) Emission inventories;
(vii) Technical assistance;
(viii) Rule making and guidelines; and
(ix) Any other activities, consistent with the
federal clean air act, that may be identified by the department;
(b) The appropriate division of fees with
delegated local air authorities; and
(c) A methodology for tracking revenues and
expenditures from fees paid under this chapter.
(17))) (15)
The department shall determine the persons liable for the fee imposed by
subsection (((15))) (14) of this section, compute the fee, and
provide by November 1 of ((1991 and 1992,)) 1993 the identity of
the fee payer with the computation of the fee to each local authority and to
the department of revenue for collection. The department of revenue shall
collect the fee computed by the department from the fee payers ((identified
by)) under the jurisdiction of the department. The administrative,
collection, and penalty provisions of chapter 82.32 RCW shall apply to the
collection of the fee by the department of revenue. The department shall
provide technical assistance to the department of revenue for decisions made by
the department of revenue pursuant to RCW 82.32.160 and 82.32.170. All interim
fees collected by the department of revenue on behalf of the department and
all interim fees collected by local authorities on behalf of the department
shall be deposited in the air operating permit account. The interim fees
collected by the local air authorities to cover their permit program
development costs under subsection (14)(d) of this section shall be deposited
in the dedicated accounts of their respective treasuries.
All fees identified in this section shall be
due and payable on March 1 of ((1992 and 1993)) 1994, except that the
local air pollution control authorities may adopt by rule an earlier date on
which fees are to be due and payable. The 1993 amendments to RCW 70.94.161
contained in section 5 of this act do not have the effect of terminating, or in
any way modifying, any liability, civil or criminal, incurred pursuant to the provisions
of RCW 70.94.161 (15) and (17) as they existed prior to the effective date of
this act.
(((18))) (16) For sources or
source categories not required to obtain permits under subsection (((5)))
(4) of this section, the department or local authority may establish by
rule control technology requirements. If control technology rule revisions are
made by the department or local authority under this subsection, the department
or local authority shall consider the remaining useful life of control equipment
previously installed on existing sources before requiring technology changes.
The department or any local air authority may issue a general permit, as
authorized under the federal clean air act, for such sources.
(((19))) (17) RCW 70.94.151 shall
not apply to any permit program source ((for which a permit under
this section has been issued)) after the effective date of United States
environmental protection agency approval of the state operating permit program.
NEW SECTION. Sec. 6. A
new section is added to chapter 70.94 RCW to read as follows:
(1) The department and delegated local air
authorities are authorized to determine, assess, and collect, and each permit
program source shall pay, annual fees sufficient to cover the direct and
indirect costs of implementing a state operating permit program approved by the
United States environmental protection agency under the federal clean air act.
However, a source that receives its operating permit from the United States
environmental protection agency shall not be considered a permit program source
so long as the environmental protection agency continues to act as the
permitting authority for that source. Each permitting authority shall develop
by rule a fee schedule allocating among its permit program sources the costs of
the operating permit program, and may, by rule, establish a payment schedule
whereby periodic installments of the annual fee are due and payable more
frequently. All operating permit program fees collected by the department
shall be deposited in the air operating permit account. All operating permit
program fees collected by the delegated local air authorities shall be
deposited in their respective air operating permit accounts or other accounts
dedicated exclusively to support of the operating permit program. The fees
assessed under this subsection shall first be due not less than forty-five days
after the United States environmental protection agency delegates to the
department the authority to administer the operating permit program and then
annually thereafter.
The department shall establish, by rule,
procedures for administrative appeals to the department regarding the fee
assessed pursuant to this subsection.
(2) The fee schedule developed by each permitting
authority shall fully cover and not exceed both its permit administration costs
and the permitting authority's share of state-wide program development and
oversight costs.
(a) Permit administration costs are those
incurred by each permitting authority, including the department, in
administering and enforcing the operating permit program with respect to
sources under its jurisdiction. Costs associated with the following activities
are fee eligible as these activities relate to the operating permit program and
to the sources permitted by a permitting authority, including, where
applicable, sources subject to a general permit:
(i) Preapplication assistance and review of an
application and proposed compliance plan for a permit, permit revision, or
renewal;
(ii) Source inspections, testing, and other
data-gathering activities necessary for the development of a permit, permit
revision, or renewal;
(iii) Acting on an application for a permit,
permit revision, or renewal, including the costs of developing an applicable
requirement as part of the processing of a permit, permit revision, or renewal,
preparing a draft permit and fact sheet, and preparing a final permit, but
excluding the costs of developing BACT, LAER, BART, or RACT requirements for
criteria and toxic air pollutants;
(iv) 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;
(v) Modeling necessary to establish permit
limits or to determine compliance with permit limits;
(vi) Reviewing compliance certifications and
emissions reports and conducting related compilation and reporting activities;
(vii) Conducting compliance inspections,
complaint investigations, and other activities necessary to ensure that a
source is complying with permit conditions;
(viii) Administrative enforcement activities
and penalty assessment, excluding the costs of proceedings before the pollution
control hearings board and all costs of judicial enforcement;
(ix) The share attributable to permitted
sources of the development and maintenance of emissions inventories;
(x) The share attributable to permitted sources
of ambient air quality monitoring and associated recording and reporting
activities;
(xi) Training for permit administration and
enforcement;
(xii) Fee determination, assessment, and
collection, including the costs of necessary administrative dispute resolution
and penalty collection;
(xiii) Required fiscal audits, periodic
performance audits, and reporting activities;
(xiv) Tracking of time, revenues and
expenditures, and accounting activities;
(xv) Administering the permit program including
the costs of clerical support, supervision, and management;
(xvi) Provision of assistance to small businesses
under the jurisdiction of the permitting authority as required under section
507 of the federal clean air act; and
(xvii) Other activities required by operating
permit regulations issued by the United States environmental protection agency
under the federal clean air act.
(b) Development and oversight costs are those
incurred by the department in developing and administering the state operating
permit program, and in overseeing the administration of the program by the
delegated local permitting authorities. Costs associated with the following
activities are fee eligible as these activities relate to the operating permit
program:
(i) Review and determinations necessary for
delegation of authority to administer and enforce a permit program to a local
air authority under RCW 70.94.161(2) and 70.94.860;
(ii) Conducting fiscal audits and periodic
performance audits of delegated local authorities, and other oversight
functions required by the operating permit program;
(iii) Administrative enforcement actions taken
by the department on behalf of a permitting authority, including those actions
taken by the department under RCW 70.94.785, but excluding the costs of
proceedings before the pollution control hearings board and all costs of
judicial enforcement;
(iv) Determination and assessment with respect
to each permitting authority of the fees covering its share of the costs of
development and oversight;
(v) Training and assistance for permit program
administration and oversight, including training and assistance regarding
technical, administrative, and data management issues;
(vi) Development of generally applicable
regulations or guidance regarding the permit program or its implementation or
enforcement;
(vii) State codification of federal rules or standards
for inclusion in operating permits;
(viii) Preparation of delegation package and
other activities associated with submittal of the state permit program to the
United States environmental protection agency for approval, including ongoing
coordination activities;
(ix) General administration and coordination of
the state permit program, related support activities, and other agency indirect
costs, including necessary data management and quality assurance;
(x) Required fiscal audits and periodic
performance audits of the department, and reporting activities;
(xi) Tracking of time, revenues and
expenditures, and accounting activities;
(xii) Public education and outreach related to
the operating permit program, including the maintenance of a permit register;
(xiii) The share attributable to permitted
sources of compiling and maintaining emissions inventories;
(xiv) The share attributable to permitted
sources of ambient air quality monitoring, related technical support, and
associated recording activities;
(xv) The share attributable to permitted
sources of modeling activities;
(xvi) Provision of assistance to small business
as required under section 507 of the federal clean air act as it exists on the
effective date of this act or its later enactment as adopted by reference by
the director by rule;
(xvii) Provision of services by the department
of revenue and the office of the state attorney general and other state
agencies in support of permit program administration;
(xviii) A one-time revision to the state
implementation plan to make those administrative changes necessary to ensure
coordination of the state implementation plan and the operating permit program;
and
(xix) Other activities required by operating
permit regulations issued by the United States environmental protection agency
under the federal clean air act.
(3) The responsibility for operating permit fee
determination, assessment, and collection is to be shared by the department and
delegated local air authorities as follows:
(a) Each permitting authority, including the
department, acting in its capacity as a permitting authority, shall develop a
fee schedule and mechanism for collecting fees from the permit program sources
under its jurisdiction; the fees collected by each authority shall be
sufficient to cover its costs of permit administration and its share of the
department's costs of development and oversight. Each delegated local
authority shall remit to the department its share of the department's
development and oversight costs.
(b) Only those local air authorities to whom
the department has delegated the authority to administer the program pursuant
to RCW 70.94.161(2) (b) and (c) and 70.94.860 shall have the authority to
administer and collect operating permit fees. The department shall retain the
authority to administer and collect such fees with respect to the sources
within the jurisdiction of a local air authority until the effective date of
program delegation to that air authority.
(c) The department shall allocate its
development and oversight costs among all permitting authorities, including the
department, in proportion to the number of permit program sources under the
jurisdiction of each authority, except that extraordinary costs or other costs
readily attributable to a specific permitting authority may be assessed that
authority. For purposes of this subsection, all sources covered by a single
general permit shall be treated as one source.
(4) The department and each delegated local air
authority shall adopt by rule a general permit fee schedule for sources under
their respective jurisdictions after such time as the department adopts
provisions for general permit issuance. Within ninety days of the time that
the department adopts a general permit fee schedule, the department shall
report to the relevant standing committees of the legislature regarding the
general permit fee schedules adopted by the department and by the delegated
local air authorities. The permit administration costs of each general permit
shall be allocated equitably among only those sources subject to that general
permit. The share of development and oversight costs attributable to each
general permit shall be determined pursuant to subsection (3)(c) of this
section.
(5) The fee schedule developed by the
department shall allocate among the sources for whom the department acts as a
permitting authority, other than sources subject to a general permit, those
portions of the department's permit administration costs and the department's
share of the development and oversight costs which the department does not plan
to recover under its general permit fee schedule or schedules as follows:
(a) The department shall allocate its permit
administration costs and its share of the development and oversight costs not
recovered through general permit fees according to a three-tiered model based
upon:
(i) The number of permit program sources under
its jurisdiction;
(ii) The complexity of permit program sources
under its jurisdiction; and
(iii) The size of permit program sources under
its jurisdiction, as measured by the quantity of each regulated pollutant
emitted by the source.
(b) Each of the three tiers shall be equally
weighted.
(c) The department may, in addition, allocate
activities-based costs readily attributable to a specific source to that source
under RCW 70.94.152(1) and section 8(7) of this act.
The quantity of each regulated pollutant
emitted by a source shall be determined based on the annual emissions during
the most recent calendar year for which data is available.
(6) The department shall, after opportunity for
public review and comment, adopt rules that establish a process for development
and review of its operating permit program fee schedule, a methodology for
tracking program revenues and expenditures and, for both the department and the
delegated local air authorities, a system of fiscal audits, reports, and
periodic performance audits.
(a) The fee schedule development and review
process shall include the following:
(i) The department shall conduct a biennial workload
analysis. The department shall provide the opportunity for public review of
and comment on the workload analysis. The department shall review and update
its workload analysis during each biennial budget cycle, taking into account
information gathered by tracking previous revenues, time, and expenditures and
other information obtained through fiscal audits and performance audits.
(ii) The department shall prepare a biennial
budget based upon the resource requirements identified in the workload analysis
for that biennium. In preparing the budget, the department shall take into
account the projected operating permit account balance at the start of the
biennium. The department shall provide the opportunity for public review of
and comment on the proposed budget. The department shall review and update its
budget each biennium.
(iii) The department shall develop a fee
schedule allocating the department's permit administration costs and its share
of the development and oversight costs among the department's permit program
sources using the methodology described in subsection (5) of this section. The
department shall provide the opportunity for public review of and comment on
the allocation methodology and fee schedule. The department shall provide procedures
for administrative resolution of disputes regarding the source data on which
allocation determinations are based; these procedures shall be designed such
that resolution occurs prior to the completion of the allocation process. The
department shall review and update its fee schedule annually.
(b) The methodology for tracking revenues and
expenditures shall include the following:
(i) The department shall develop a system for
tracking revenues and expenditures that provides the maximum practicable
information. At a minimum, revenues from fees collected under the operating
permit program shall be tracked on a source-specific basis and time and
expenditures required to administer the program shall be tracked on the basis
of source categories and functional categories. Each general permit will be
treated as a separate source category for tracking and accounting purposes.
(ii) The department shall use the information
obtained from tracking revenues, time, and expenditures to modify the workload
analysis required in subsection (6)(a) of this section.
(iii) 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.
(iv) On or before December 1, 1996, the
department shall report to the appropriate standing committees of the
legislature recommendations on the administrative feasibility and benefits of
source-specific tracking of time and expenditures. The report may include
findings from demonstration projects wherein time and expenditures are tracked
on a source-specific basis.
(c) The system of fiscal audits, reports, and
periodic performance audits shall include the following:
(i) The department and the delegated local air
authorities shall prepare annual reports and shall submit the reports to,
respectively, the appropriate standing committees of the legislature and the
board of directors of the local air authority.
(ii) The department shall arrange for fiscal
audits and routine performance audits and for periodic intensive performance
audits of each permitting authority and of the department.
(7) Each local air authority requesting
delegation shall, after opportunity for public review and comment, publish
regulations which establish a process for development and review of its
operating permit program fee schedule, and a methodology for tracking its
revenues and expenditures. These regulations shall be submitted to the
department for review and approval as part of the local authority's delegation
request.
(8) As used in this section and in RCW
70.94.161(14), "regulated pollutant" shall have the same meaning as
defined in section 502(b) of the federal clean air act as it exists on the
effective date of this act, or its later enactment as adopted by reference by
the director by rule.
(9) The department shall report to the
appropriate standing committees of the legislature by December 1, 1995,
regarding the appropriateness of the fee structures authorized under this
section for those sources not subject to permit program requirements as of the
effective date of this act but which later become subject to such permit
program requirements. In preparing the report, the department shall consult
with representatives of such sources, local air authorities, environmental
groups, and other interested parties. Fee structures as authorized under this
section shall remain in effect until such time as the legislature authorizes an
alternative structure following receipt of the report required by this
subsection.
NEW SECTION. Sec. 7. A
new section is added to chapter 70.94 RCW to read as follows:
(1) The department of health shall have all the
enforcement powers as provided in RCW 70.94.332, 70.94.425, 70.94.430,
70.94.431(1) through (7), and 70.94.435 with respect to emissions of
radionuclides. This section does not preclude the department of ecology from
exercising its authority under this chapter.
(2) Permits for energy facilities subject to
chapter 80.50 RCW shall be issued by the energy facility site evaluation
council. However, the permits become effective only if the governor approves an
application for certification and executes a certification agreement under
chapter 80.50 RCW. The council shall have all powers necessary to administer
an operating permits program pertaining to such facilities, consistent with
applicable air quality standards established by the department or local air
pollution control authorities, or both, and to obtain the approval of the
United States environmental protection agency. The council's powers include,
but are not limited to, all of the enforcement powers provided in RCW
70.94.332, 70.94.425, 70.94.430, 70.94.431 (1) through (7), and 70.94.435 with
respect to permit program sources required to obtain certification from the
council under chapter 80.50 RCW. To the extent not covered under RCW
80.50.071, the council may collect fees as granted to delegated local air
authorities under RCW 70.94.152, 70.94.161 (14) and (15), and sections 6 and
8(7) of this act with respect to permit program sources required to obtain
certification from the council under chapter 80.50 RCW. The council and the
department shall each establish procedures that provide maximum coordination
and avoid duplication between the two agencies in carrying out the requirements
of this chapter.
NEW SECTION. Sec. 8. A
new section is added to chapter 70.94 RCW to read as follows:
(1) RACT as defined in RCW 70.94.030 is
required for existing sources except as otherwise provided in RCW 70.94.331(9).
(2) RACT for each source category containing
three or more sources shall be determined by rule except as provided in
subsection (3) of this section.
(3) Source-specific RACT determinations may be
performed under any of the following circumstances:
(a) As authorized by RCW 70.94.153;
(b) When required by the federal clean air act;
(c) For sources in source categories containing
fewer than three sources;
(d) When an air quality problem, for which the
source is a contributor, justifies a source-specific RACT determination prior
to development of a categorical RACT rule; or
(e) When a source-specific RACT determination
is needed to address either specific air quality problems for which the source
is a significant contributor or source-specific economic concerns.
(4) By January 1, 1994, ecology shall develop a
list of sources and source categories requiring RACT review and a schedule for
conducting that review. Ecology shall review the list and schedule within six
months of receiving the initial operating permit applications and at least once
every five years thereafter. In developing the list to determine the schedule
of RACT review, ecology shall consider emission reductions achievable through
the use of new available technologies and the impacts of those incremental
reductions on air quality, the remaining useful life of previously installed
control equipment, the impact of the source or source category on air quality,
the number of years since the last BACT, RACT, or LAER determination for that
source and other relevant factors. Prior to finalizing the list and schedule,
ecology shall consult with local air authorities, the regulated community,
environmental groups, and other interested individuals and organizations. The
department and local authorities shall revise RACT requirements, as needed,
based on the review conducted under this subsection.
(5) In determining RACT, ecology and local
authorities shall utilize the factors set forth in RCW 70.94.030 and shall
consider RACT determinations and guidance made by the federal environmental
protection agency, other states and local authorities for similar sources, and
other relevant factors. In establishing or revising RACT requirements, ecology
and local authorities shall address, where practicable, all air contaminants
deemed to be of concern for that source or source category.
(6) Emission standards and other requirements
contained in rules or regulatory orders in effect at the time of operating
permit issuance or renewal shall be considered RACT for purposes of permit
issuance or renewal. RACT determinations under subsections (2) and (3) of this
section shall be incorporated into operating permits as provided in RCW
70.94.161 and rules implementing that section.
(7) The department and local air authorities
are authorized to assess and collect a fee to cover the costs of developing,
establishing, or reviewing categorical or case-by-case RACT requirements. The
fee shall apply to determinations of RACT requirements as defined under this
section and RCW 70.94.331(9). The amount of the fee may not exceed the direct
and indirect costs of establishing the requirement for the particular source or
the pro rata portion of the direct and indirect costs of establishing the
requirement for the relevant source category. The department shall, after
opportunity for public review and comment, adopt rules that establish a
workload-driven process for determination and review of the fee covering the
direct and indirect costs of its RACT determinations and a methodology for
tracking revenues and expenditures. All such RACT determination fees collected
by the department from permit program sources shall be deposited in the air
operating permit account. All such RACT determination fees collected by the
delegated local air authorities from permit program sources shall be deposited
in the dedicated accounts of their respective treasuries. All such RACT fees
collected by the department from nonpermit program sources shall be deposited
in the air pollution control account. All such RACT fees collected by local
air authorities from nonpermit program sources shall be deposited in their
respective treasuries.
