PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 10-09-102.
Title of Rule and Other Identifying Information: Revision of chapter 173-455 WAC, Air quality fee rule. The amendments will change the fee schedule for permitting activities covered under the federal and state new source review program. These fees by law must support the cost of issuing a permit. The legislature authorized these fee increases and cut our general fund subsidy by the amount ecology estimated the fee increases will generate. This action is revenue neutral. The department of ecology's (ecology) air quality program will not expand its program nor hire additional staff because of the increased fees. We are also making a few housekeeping changes.
Hearing Location(s): Department of Ecology, 300 Desmond Drive, Lacey, on April 5, 2011, open house at 6 p.m., hearing at 7 p.m.; at the Hal Holmes Center, 209 North Ruby Street, Ellensburg, on April 6, 2011, open house at 5:30 p.m., hearing at 6:30 p.m.; and at the Department of Ecology, 4601 North Monroe Street, Spokane, on April 7, 2011, open house at 5:30 p.m., hearing at 6:30 p.m.
Date of Intended Adoption: May 23, 2011.
Submit Written Comments to: Elena Guilfoil, Air Quality Fee Rule Comments, Department of Ecology, Air Quality Program, P.O. Box 47600, Olympia, WA 98504-7600, e-mail AQComments@ecy.wa.gov, fax (360) 407-7534, by April 15, 2011.
Assistance for Persons with Disabilities: Contact Tami Dahlgren at (360) 407-6830, by April 1, 2011. Persons with hearing loss, call 711 for Washington relay service. Persons with a speech disability, call 877-833-6341.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to update permitting fees in chapter 173-455 WAC to make Washington's new source review process more financially self-sufficient. The proposal increases fees to cover the costs of processing a new source review permit, as authorized by the legislature, and provides incentives to streamline permitting. The rule proposal also:
• Changes the name of a reseller certificate to a
reseller permit to be consistent with the department
of revenue (WAC 173-455-060); and
• Updates portable and temporary portable source
permit fee provisions for consistency with 2011
revisions to chapter 173-400 WAC (WAC 173-455-140).
Reasons Supporting Proposal: The revenue from fees under our preconstruction permitting program does not cover the cost of operating the program. The 2009 legislature authorized these fee increases and cut our general fund subsidy, effective July 1, 2011, by the amount ecology estimated the fee increases will generate. The 2011 legislature reauthorized the fee increases with the passage of chapter 5, Laws of 2011, on February 18, 2011. This action is revenue neutral; ecology's air quality program will not expand its program nor hire additional staff because of the increased fees. We need the new fee structure in place by July 1, 2011, to make up the general fund reduction. Ecology evaluated our fee structure to determine the most appropriate method for assessing fees. If fees are not increased, there will be considerable delays in permitting approval due to lack of agency resources. With this fee structure, ecology attempts to maximize taxpayer dollars by making the permit applicant cover the full costs of issuing the permit. The more complete the information a business provides in its application, the more efficient ecology's review will be, resulting in a lower total fee for that permit.
Statutory Authority for Adoption: RCW 70.94.152 and section 301(28), chapter 5, Laws of 2011 (ESHB 1086). RCW 43.135.055 requires a majority vote of the legislature to raise or add fees. Legislative authority granted in 2009 to adopt fee changes became invalid when the voters passed Initiative 1053 in November 2010. On February 18, 2011, the legislature reauthorized ecology to increase fees.
Statute Being Implemented: RCW 70.94.152.
Rule is not necessitated by federal law, federal or state court decision.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: This rule making contains references to chapter 173-400 WAC. Chapter 173-400 WAC is also being updated through rule making (AO 09-01). This proposed fee rule references rule language and the numbering system in the revisions to chapter 173-400 WAC. Ecology will coordinate both rule makings to prevent inconsistencies between the final rules.
For more information about the chapter 173-400 WAC rule making see http://www.ecy.wa.gov/laws-rules/wac173400/0901.html.
Name of Proponent: Department of ecology, air quality program, governmental.
Name of Agency Personnel Responsible for Drafting: Elena Guilfoil, Air Quality Program, Olympia, (360) 407-6855; Implementation and Enforcement (both unless noted): Garin Schrieve, Industrial Section, Waste 2 Resources, Olympia, (360) 407-6868; Doug Hendrickson, Nuclear Waste Program, Richland, (509) 531-0727; Sue Billings, Central Regional Office, Yakima, (509) 575-2486; Eastern Regional Office, Greg Flibbert, implementation and Karen Wood, enforcement, Spokane, (509) 329-3469; David Ogulei, implementation of PSD program and air toxics review, Olympia, (360) 407-6803; and Enforcement of PSD permit or air toxics review lies with permitting agency with jurisdiction over applicant: Benton Clean Air Agency, Robin Priddy, Kennewick, (509) 783-1304; Northwest Clean Air Agency, Mark Buford, Mount Vernon, (360) 428-1617; Olympic Region Clean Air Agency, Mark Goodin, Olympia, 1-800-422-5623; Puget Sound Clean Air Agency, Steve Van Slyke, Seattle, 1-800-552-3565; Southwest Clean Air Agency, Paul Mairose, Vancouver, 1-800-633-0709; Spokane Regional Clean Air Agency, Ron Edgar, Spokane, (509) 477-4727; and ecology offices and staff noted above.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
New source review is a program ecology uses to issue preconstruction permits for new sources of air pollution. Washington air quality law and rules require new sources of air pollution to have preconstruction review and approval before beginning construction on a proposed project.
The changes to the fee schedule include:
Increase many permit fees to cover more of the costs of administering and enforcing the permit programs.
Allocate amounts of time and support offered for different permit actions, with hourly fees for additional time.
Make housekeeping changes to facilitate clarity and compliance.
Probable benefits include:
Reduction in permit fees for some applicants.
Avoided increased [increases] in the time it takes to process permit applications and administer the program.
Clarification and improved compliance.
Probable net quantified costs include: $96 thousand per year in total increased permit fees.
Ecology calculated cost-to-employment ratios to examine the relative impacts of the proposed rule on small versus large businesses. Ecology also considered the impacts of the proposed rule on local governments and other small public entities, to reflect the requirements in the Governor's Executive Order 10-06.1 Other measures of businesses' ability to cope with compliance costs (sales, hours of labor) were not sufficiently available for the representative set of permittees.
At the median per-employee impact across various permit actions, ecology expects small businesses to pay at least three hundred sixty times the compliance costs of the largest ten percent of businesses. Looking at the ranges of possible per-employee compliance cost impacts, based on permit type, the ranges of small and large business impacts overlap, but this is largely due to some businesses experiencing possible fee reductions under the proposed rule. It is clear from these ratios at the median that the proposed rule creates a disproportionate impact on small business, as based on employment rolls. This means ecology must make reasonable effort to mitigate these disproportionate impacts.
Ecology made decisions in the course of rule making intended to reduce disproportionate impacts on small businesses, including changing proposed fees that were likely to affect more small businesses. The proposed rule also includes existing text reducing compliance costs and providing hardship and economic considerations for small businesses in altering their compliance costs.
Based on the Washington state office of financial management's input-output model of the state economy, ecology calculated that the proposed rule may result in up to two jobs being lost in the economy permanently over the next twenty years.
Section 1: Introduction and Background.
Based on research and analysis required by the Regulatory Fairness Act, RCW 19.85.070, ecology has determined the proposed rule amendments (chapter 173-455 WAC) likely have a disproportionate impact on small business. Therefore, ecology included cost-minimizing features in the rule where it is legal and feasible to do so.
This document presents the:
Background for the analysis of impacts on small business relative to other businesses.
Results of the analysis.
Cost-mitigating action taken by ecology.
It is intended to be read with the associated cost-benefit analysis (Ecology publication #11-02-008), which contains more in-depth discussion of the analyses.
A small business is defined as having fifty or fewer employees. Estimated impacts are determined as compared to the existing regulatory environment - the way air quality fees would be regulated in the absence of the proposed rule amendments.
The existing regulatory environment is called the "baseline" in this document. It includes only existing regulation through laws and rules at federal, state, and local levels. It does not include elements such as guidance or unofficial standard practices in industry or business.
History: Air pollution control in Washington is based on federal, state and local laws and regulations. The federal Environmental Protection Agency, ecology, and local clean air agencies, all regulate air quality. Ecology implements and enforces air quality regulations in counties without a local clean air agency. Ecology also has statewide jurisdiction over primary aluminum plants, pulp mills, large commercial and industrial facilities subject to the federal prevention of significant deterioration (PSD) program, and emissions of specific toxic air pollutants that exceed specified levels.
New source review is a program ecology uses to issue preconstruction permits for new sources of air pollution. Washington air quality law and rules require new sources of air pollution to have preconstruction review and approval before beginning construction on a proposed project.
New source review is a program ecology uses to issue and manage preconstruction permits for new sources of air pollution. This program also applies to existing sources that replace or modify their equipment, if that action results in increased emissions. Washington air quality law and rules require new or modified sources of air pollution to undergo preconstruction review and get approval before beginning construction on a proposed project.
Ecology's new source review program has four parts:
Minor new source review applies to smaller sources that are located in counties under ecology's jurisdiction.
PSD is a federal program for permitting large commercial and industrial sources.
Nonattainment new source review applies to large commercial and industrial sources located in nonattainment areas under ecology's jurisdiction.
Second and third tier review is a process used to review toxic air emissions that are higher than a specified level.
Ecology issues multiple air-quality-related permits related to new or modified sources of air pollution, including but not limited to:
Air operating permits.
Notice of construction permits.
General orders of approval for particular industries or types of operation.
Chapter 173-455 WAC, Air quality fee regulation, identifies the fees for different permits and permit actions. WAC 173-455-120 contains the new source review related fees.
Regulatory baseline: The regulatory baseline is the way air quality permit fees would be assigned if the proposed rule is not adopted - that is, based on existing laws and rules. The baseline does not include guidance and practices commonly used in existing permit fee determination and behavior if they are not required by a law, rule, permit, etc. For a full summary of baseline fees, see the associated cost-benefit analysis, Table 1.
Changes under the proposed rule:
In this rule making, ecology is proposing amendments to chapter 173-455 WAC that would:
Increase many permit fees to cover more of the costs of processing an application.
Allocate amounts of time and support offered for different permit actions, with hourly fees for additional time.
Make housekeeping changes to facilitate clarity and compliance.
RCW 43.135.055 (Initiative 960) requires an agency to receive specific legislative approval to increase fees. Section 301(10) of the 2009 budget bill directs ecology to "increase [air emissions new source review] ... fees in the 2009-2011 biennium as necessary to meet the actual costs of conducting business...." to cover the cost of conducting business... ." See ESHB 1244(2009). RCW 70.94.152 provides authority for ecology to establish notice of construction and other review fees. The statute limits the scope of these fees to direct and indirect costs associated with processing the request.
New fees and changes to time allotted: According to an internal review of budget records, past fees covered only about half of the costs to administer and enforce the new source review and PSD components of air quality regulation. Increasing fees will bring the program closer to cost recovery. Since the state's general fund deficit could limit the amount of money available to subsidize the program and permitting actions that pay for themselves may prevent cuts to the program. This would, in turn, limit resulting cuts to services provided to individuals, businesses, and the public in enforcing air quality law. For a full summary of proposed fees, see the associated cost-benefit analysis, Table 2.
Clarification and reorganization: Ecology clarified the rule language and reorganized the structure of the proposed rule to improve understanding of the requirements, and in turn, improve compliance with the rule.
Section 2: Compliance Costs for Business and Local Government.
The proposed rule likely generates costs through direct fee increases to some permittees. This cost is discussed further below, with additional discussion of how it was considered in this analysis - qualitatively, or whether it could be evaluated quantitatively as well.
Increased permit costs for some permittees:
The set of fees included in the proposed rule likely result in increased fees for some permittees.
For others, ecology does not expect total permit fees to change, and for others they may decrease.
Ecology included this cost quantitatively in its analysis. See chapter 3 for complete discussion of how this cost was quantified.
Reduction of permit fees for some applicants: Because permit fees and the time allocated for reviewing and approving permit applications are based on typical permit cases, some permittees and permit applicants may experience a reduction in individual fees for particular permit applications or permit actions.
Ecology quantified the most likely costs and benefits of the proposed rule, where possible with reasonable certainty, given available data. To quantitatively estimate the costs and benefits likely resulting from the proposed rule, ecology analyzed the likely impact of increased fees for some permittees, and reduced fees for others, and where there was no change.
Model inputs.
Existing permit data.
Ecology collected existing permit data for current new source review permit actions and historic data on the types of businesses that incur fees for permit actions. This data included the type of permit action, as well as permittee information.
Baseline fees: Baseline fees assigned to each type of permittee were based on the set of fees delineated by the existing rule. For consistency in comparison, ecology used permittees for whom tracking information was available to also estimate proposed fees. This generated a range of fees from $500 to $10 thousand across all permittees with traceable actions.
Proposed fees: Ecology based the likely fees for each type of permittee based on the new set of fees in the proposed rule. This generated a range of fees from $200 to over $21 thousand across all permittees with traceable actions.
Industry and employment numbers: Ecology categorized businesses by industry and size, using the North American industry classification system (NAICS) and employment numbers associated with those industries from the Washington state employment security department.
Section 3: Quantification of Costs and Ratios.
For each existing type of permittee (representing likely future permittees), ecology calculated the difference between the fee paid under the existing baseline rule, and the estimated fee based on the proposed rule. For those types of permit actions that did not have data on time consumed, ecology:
Conservatively assumed existing "moderate" complexity new source review actions would fall under the "high" complexity category under the proposed rule. While this will not be the case (they will fall in the hourly "low" complexity category, and be charged hourly rates), ecology could not confidently estimate the number of hours such actions would take overall, and so took the most conservative approach of assuming overestimated costs.
Averaged fee changes, by permit action type, across available existing actions, and applied average values to the average number of each permit action per year over the previous four fiscal years.
This generated a range of impacts between a nearly $2 thousand cost savings, and a $11 thousand increase for highly complex permit action and analysis, at the individual permit level. Ecology then multiplied these fee cost impacts by the number of expected permittees and permit applicants requiring action, by type, each year. This accounted for fee increases, decreases, and fees not changing for different permittees.
| TABLE 1: Compliance cost per employee under various scenarios | ||||||
| PERMIT ACTION |
AT MIN COST | AT MAX COST | CORRELATING COSTS TO SIZE |
|||
| Small Businesses | Largest ten Percent | Small Businesses | Largest ten Percent | Small Businesses | Largest ten Percent | |
| New Minor | $25.00 | $0.01 | $584.55 | $0.31 | $25.00 | $0.31 |
| New Major | $200.00 | $0.11 | $200.00 | $0.11 | $200.00 | $0.11 |
| Revised Minor | -$42.50 | -$0.02 | $72.50 | $0.04 | -$42.50 | $0.04 |
| Revised Major | $200.00 | $0.11 | $200.00 | $0.11 | $200.00 | $0.11 |
| Tier II Review | $1,108.65 | $0.59 | $1,108.65 | $0.59 | $1,108.65 | $0.59 |
| PSD: Admin Revision | $40.00 | $0.02 | $82.75 | $0.04 | $40.00 | $0.04 |
| PSD: Other | -$199.65 | -$0.11 | -$199.65 | -$0.11 | -$199.65 | -$0.11 |
Section 4: Action Taken to Reduce Small Business Impacts:
Ecology was limited to the goals and objectives of this rule making in its ability to reduce costs to small business further than the system of paying for ecology work needed already does under the proposed rule. Ecology did, however, take actions to reduce compliance costs to small businesses in particular (and for all businesses in general; see least burdensome alternative analysis in cost-benefit analysis). In addition, ecology provides compliance assistance and rules provide for hardship considerations in small businesses' ability to meet compliance costs.
While ecology strove to make costs meet permit application processing and assistance expenditures, and to reduce compliance costs for all businesses, particular note was made during the rule making about simple minor permitting actions. These actions are likely to be for small businesses. Ecology originally suggested a fee of $1750 for a new permit application falling in the simple fee category. Based on stakeholders comments that our data shows that this fee has the potential to unfairly affect some small business, we reduced our initial fee by $250.
WAC 173-455-040(6) in the rule makes special considerations for small businesses complying with the proposed rule. It also accounts for economic conditions affecting the ability to afford compliance costs. In particular, it states: "Fee reductions for economic hardships. If a small business owner believes the registration fee results in an extreme economic hardship, the small business owner may request an extreme hardship fee reduction. The owner or operator must provide sufficient evidence to support a claim of an extreme hardship. The factors which ecology may consider in determining whether an owner or operator has special economic circumstances and in setting the extreme hardship fee include: Annual sales; labor force size; market conditions which affect the owner's or operator's ability to pass the cost of the registration fee through to customers; average annual profits; and cumulative effects of multiple site ownership. In no case will a registration fee be reduced below two hundred dollars."
WAC 173-455-100(6) makes similar considerations: "Small business fee reduction. The RACT analysis and determination fee identified in subsections (2) through (5) of this section may be reduced for a small business.
(a) To qualify for the small business RACT fee reduction, a business must meet the requirements of "small business" as defined in RCW 43.31.025.
(b) To receive a fee reduction, the owner or operator of a small business must include information in an application demonstrating that the conditions of (a) of this subsection have been met. The application must be signed:
(i) By an authorized corporate officer in the case of a corporation;
(ii) By an authorized partner in the case of a limited or general partnership; or
(iii) By the proprietor in the case of a sole proprietorship.
(c) Ecology may verify the application information and if the owner or operator has made false statements, deny the fee reduction request and revoke previously granted fee reductions.
(d) For small businesses determined to be eligible under (a) of this subsection, the RACT analysis and determination fee shall be reduced to the greater of:
(i) Fifty percent of the RACT analysis and determination fee; or
(ii) Two hundred fifty dollars.
(e) If due to special economic circumstances, the fee reduction determined under (d) of this subsection imposes an extreme hardship on a small business, the small business may request an extreme hardship fee reduction. The owner or operator must provide sufficient evidence to support a claim of an extreme hardship. The factors which ecology may consider in determining whether an owner or operator has special economic circumstances and in setting the extreme hardship fee include: Annual sales; labor force size; market conditions which affect the owner's or operator's ability to pass the cost of the RACT analysis and determination fees through to customers; and average annual profits. In no case will a RACT analysis and determination fee be reduced below one hundred dollars."
WAC 173-455-120 states: "Small business fee reduction. The new source review fee identified in subsections (2) and (3) of this section may be reduced for a small business.
(a) To qualify for the small business new source review fee reduction, a business must meet the requirements of "small business" as defined in RCW 19.85.020. In RCW 19.85.020, "small business" means any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, that has the purpose of making a profit, and that has fifty or fewer employees.
(b) To receive a fee reduction, the owner or operator of a small business must include information in the application demonstrating that the conditions of (a) of this subsection have been met. The application must be signed:
(i) By an authorized corporate officer in the case of a corporation;
(ii) By an authorized partner in the case of a limited or general partnership; or
(iii) By the proprietor in the case of a sole proprietorship.
(c) Ecology may verify the application information and, if the owner or operator has made false statements, deny the fee reduction request and revoke previously granted fee reductions.
(d) For small businesses determined to be eligible under (a) of this subsection, the new source review fee shall be reduced to the greater of:
(i) Fifty percent of the new source review fee; or
(ii) Two hundred fifty dollars.
(e) If, due to special economic circumstances, the fee reduction determined under (d) of this subsection imposes an extreme hardship on a small business, the small business may request an extreme hardship fee reduction. The owner or operator must provide sufficient evidence to support a claim of an extreme hardship. The factors which ecology may consider in determining whether an owner or operator has special economic circumstances and in setting the extreme hardship fee include: Annual sales; labor force size; market conditions which affect the owner's or operator's ability to pass the cost of the new source review fees through to customers; and average annual profits. In no case will a new source review fee be reduced below one hundred dollars."
Section 5: Small Business and Government Involvement:
Ecology worked with stakeholders, who had the opportunity to comment on the draft fee schedule. Ecology sent a mailing to those potentially impacted by the rule change, including all parties who have previously obtained a permit, and registration sources that might need a permit in the future. To explain the elements of the proposed fee schedule, ecology distributed information via a press release, mailing and e-mail.
Small businesses particularly participating to a greater degree in the stakeholder process included a cement company and two construction material and service businesses.2 The Independent Business Association was also represented, with focus on the dry cleaning sector.
Section 6: NAICS Codes of Impacted Industries:
This section lists NAICS codes for industries ecology expects to be impacted by the proposed rule.3 These include:
| Table 4: Likely affected NAICS | |||||
| 111339 | 311119 | 324121 | 423310 | 486110 | 622110 |
| 212319 | 311225 | 325311 | 423320 | 511210 | 812210 |
| 212399 | 311412 | 327320 | 423810 | 541310 | 812320 |
| 221122 | 311611 | 327390 | 424480 | 541330 | 812910 |
| 236115 | 311999 | 333414 | 424490 | 541711 | 922140 |
| 236220 | 321912 | 333923 | 424610 | 541890 | 926130 |
| 237310 | 322110 | 336411 | 424690 | 541940 | |
| 238110 | 322121 | 336612 | 424720 | 541990 | |
| 238210 | 322221 | 337110 | 424910 | 561110 | |
| 238910 | 324110 | 339112 | 444190 | 562212 | |
Ecology used the Washington state office of financial management's 2002 Washington input-output model.4 The model accounts for interindustry impacts and spending multipliers of earned income and changes in output. Based on the net fee increase, apportioned across industry groups based on prevalence in the previous three years' permits, the model estimates between one and two jobs permanently lost in the state, over the next twenty years. This result does not account for where fee payments are respent by government, as it would on interindustry transfer payments.
| 1http://www.governor.wa.gov/news/Executive_Order_10-06.pdf. | |
| 2Ellensburg Cement, Hooker Creek Companies, Granite Northwest. | |
| 3North American industry classification system (NAICS) codes have largely taken the place of standard industry classification (SIC) codes in the categorization of industries. | |
| 4See the Washington state office of financial management's site for more information on the input-output model, http://www.ofm.wa.gov/economy/io/2002/default.asp. |
A copy of the statement may be obtained by contacting Kasia Patora, Economics and Regulatory Research, Department of Ecology, P.O. Box 47600, Lacey, WA 98504-7600, phone (360) 407- 6184, fax (360) 407-6989, e-mail kasia.patora@ecy.wa.gov.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Kasia Patora, Economics and Regulatory Research, Department of Ecology, P.O. Box 47600, Lacey, WA 98504-7600, phone (360) 407- 6184, fax (360) 407-6989, e-mail kasia.patora@ecy.wa.gov.
March 1, 2011
Polly Zehm
Deputy Director
OTS-3765.5
AMENDATORY SECTION(Amending Order 06-14, filed 5/3/07,
effective 6/3/07)
WAC 173-455-060
Solid fuel retail sales fee.
(1) A
person selling a solid fuel burning device at retail shall
collect a fee from the buyer, pursuant to RCW 70.94.483.
(2) The fee shall be:
(a) Set at a minimum of thirty dollars on January 1, 1992. Thereafter, ecology may annually adjust the fee to account for inflation as determined by the office of the state economic and revenue forecast council. Adjustments in the fee should be rounded down to the nearest dollar.
(b) Applicable to all new and used solid fuel burning devices.
(c) Procedures for masonry fireplaces. Generally, contractors will collect, pay, and report the fee to the department of revenue on the combined excise tax return for the tax reporting period during which the retail sales tax is billed to the customer for the construction of the masonry fireplace. (See WAC 458-20-170 for a detailed explanation.) Collection and payment of the fee by contractors shall be in accordance with the following:
(i) A masonry contractor or other subcontractor who
builds a masonry fireplace. The retail sale occurs at the
time the general or prime contractor or customer is billed for
the work. The masonry contractor or other subcontractor must
collect the fee and pay it to the department of revenue,
unless the masonry contractor or other subcontractor has
received a ((resale certificate)) reseller permit from the
general or prime contractor. The fee shall be reported on the
combined excise tax return.
(ii) A general or prime contractor building a custom
building. The retail sale occurs at the time the customer is
billed for the construction. The fee is charged and reported
with the first progress payment after the masonry fireplace
has been substantially completed. If a general or prime
contractor subcontracts the work on a custom building to a
masonry or other contractor, the general or prime contractor
may give the masonry or other subcontractor a ((resale
certificate)) reseller permit. The general or prime
contractor is responsible to collect the fee and pay it to the
department of revenue. The fee is reported on the combined
excise tax return.
(iii) A general or prime contractor building a
speculation building. The fee is required to be paid at the
time the fireplace is complete. The fee must be reported to
the department of revenue on a combined excise tax return and
paid to the department of revenue. If the prime or general
contractor subcontracts the building of the masonry fireplace
to a masonry contractor or other subcontractor, the general or
prime contractor may not give a ((resale certificate))
reseller permit to the masonry or other subcontractor. The
masonry or other subcontractor must collect and pay the fee to
the department of revenue as provided in (c)(i) of this
subsection.
(d) Procedures for all other solid fuel burning devices. Collected by the retailer at the time of sale and remitted to the department of revenue in conjunction with the retail sales tax under chapter 82.08 RCW.
(3) If the retailer or contractor fails to collect and remit the fee to the department of revenue as prescribed in chapter 82.08 RCW, the retailer or contractor shall be personally liable to the state for the amount of the fee, with subsequent actions taken in accordance with the collection provisions of chapter 82.32 RCW.
(4) Beginning July 1, 1990, and each calendar quarter thereafter, the funds collected under RCW 70.94.483 shall be used solely for the purposes of public education and enforcement of the solid fuel burning device program. The department shall distribute the funds from the woodstove education and enforcement account as follows:
(a) Sixty-six percent of the funds shall be distributed to those local air authorities with enforcement programs, based upon the fraction of the total state population residing in the counties within their respective jurisdictions. Population figures used to establish this fraction shall be determined by the office of financial management. Where an activated local air authority does not exist or does not implement an enforcement program, or elects not to receive the funds, ecology shall retain the funds that would otherwise be distributed under this subsection; and
(b) Thirty-four percent of the funds shall be distributed to ecology for the purposes of enforcement and educating the public about:
(i) The effects of solid fuel burning device emissions upon health and air quality; and
(ii) Methods of achieving better efficiency and emission performance from solid fuel burning devices.
[Statutory Authority: RCW 70.94.181, [70.94.]152, [70.94.]331, [70.94.]650, [70.94.]745, [70.94.]892. 07-11-018 (Order 06-14), § 173-455-060, filed 5/3/07, effective 6/3/07.]
(2) Basic review fees. All owners or operators of proposed new sources are required to pay a basic review fee. The basic review fee covers the costs associated with preapplication assistance, completeness determination, BACT determination, technical review, public involvement and approval/denial orders. Complexity determination shall be based on the project described in the notice of construction application. The basic review fees are either (a) or (b) of this subsection:
(a) Basic new source review fees.
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(3) Additional charges. In addition to those fees required under subsection (2)(a) through (c) of this section, the following fees will be required as applicable:
(a) Major NSR actions under WAC 173-400-720 and 173-400-112.
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(a) The fees in this section apply to:
(i) Permit applications received on or after July 1, 2011.
(ii) Requests for ecology review of other actions covered by this section received by ecology on or after July 1, 2011.
(b) Components of permitting fees. Permit fees include initial fees and may include an hourly fee. The initial fee covers up to the number of review hours specified in each fee in this section.
(c) A project may be subject to multiple fees. For example, a project may be subject to both minor and major new source review permit fees and second or third tier review.
(d) An applicant must submit initial fees with an application, notice, or request. An application is incomplete until any permit application fee has been paid.
(i) For purposes of WAC 173-400-111(1), initial fees are considered application fees.
(ii) If ecology determines a project is complex after an applicant submitted the basic project initial fee, then the application is incomplete until the applicant pays the initial complex project fee.
(iii) If ecology determines that a higher initial fee is due after an applicant submitted an application or request, the application or request is considered incomplete until the applicant pays the new initial fee.
(e) If the initial fee paid by an applicant does not cover the cost of processing the application, notice or request, then ecology shall assess a fee based on the actual costs for review in excess of the hours specified in each fee. The assessed fee must be a rate of ninety-five dollars per hour of ecology staff time expended.
(f) Ecology cannot approve an order of approval or make a final determination under this chapter until all fees are paid. (WAC 173-400-111(3))
(g) An applicant must pay fees that are due by invoice from ecology within thirty days from the date of the invoice. Ecology will cease processing all applications for which the required fees have not been received within thirty days of an invoice.
(h) At the time of filing, an applicant must pay all delinquent air quality fees associated with the facility. This is in addition to the fees required by this section. Delinquent fees may include, but are not limited to, registration fees, civil penalties awarded to ecology, or other outstanding fees due under this section.
(i) All fees collected under this rule must be made payable to the department of ecology.
(j) Fees assessed under this section apply without regard to whether ecology approves or denies a request.
Permit fees.
Minor new source review.
(2) Review of new source or modification of an existing source with an emissions increase. (WAC 173-400-110 and 173-400-110(3).)
(a) Basic project: One thousand five hundred dollars plus an hourly rate of ninety-five dollars after sixteen hours.
This fee covers up to sixteen hours of staff time to review the application and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the application above sixteen hours.
(b) Complex project: Ten thousand dollars plus an hourly rate of ninety-five dollars after one hundred six hours.
(i) This fee covers up to one hundred six hours of staff time to review the application and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the application above one hundred six hours.
(ii) An application is considered complex if the emissions associated with the application include at least one pollutant for which emissions increases are greater than the levels in the following table:
Emission threshold table (WAC 173-400-030).
| Air Contaminant | Annual Emission Rate |
| Carbon monoxide | 100 tons per year |
| Nitrogen oxides | 40 tons per year |
| Sulfur dioxide | 40 tons per year |
|
25 tons per year of PM emissions |
| 15 tons per year of PM10 emissions | |
| 10 tons per year of PM2.5 emissions | |
| Volatile organic compounds | 40 tons per year |
| Fluorides | 3 tons per year |
| Lead | 0.6 tons per year |
| Sulfuric acid mist | 7 tons per year |
| Hydrogen sulfide (H2S) | 10 tons per year |
| Total reduced sulfur (including H2S) | 10 tons per year |
| Reduced sulfur compounds (including H2S) | 10 tons per year |
(A) Number and complexity of emission units;
(B) Volume of emissions;
(C) Amount and complexity of modeling; or
(D) Number and kind of applicable state and federal requirements.
(3) Change to an existing order of approval. (WAC 173-400-111(8).)
(a) Ecology will not charge a fee for correcting a mistake by ecology in a permit.
(b) Simple change: Two hundred dollars plus an hourly rate of ninety-five dollars after three hours.
(i) This fee covers up to three hours of staff time to review the request and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the request above three hours.
(ii) A simple change means:
(A) An action not subject to a mandatory public comment period in WAC 173-400-171; and
(B) The reissued approval order requires minimal engineering evaluation and no physical modification of equipment; and
(C) Changes in permit conditions are based on actual operating conditions and the operating conditions require minimal engineering evaluation and the change does not cause a change in allowable emissions.
(c) All other changes: Eight hundred seventy-five dollars plus an hourly rate of ninety-five dollars after ten hours.
(i) This fee covers up to ten hours of staff time to review the request and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the request above ten hours.
(ii) This fee excludes a simple change and changes to an existing permit that result in an emissions increase.
(iii) Examples of all other changes include, but are not limited to:
(A) Changes requiring more than minimal engineering review;
(B) Consolidation of permits not allowed under simple change;
(C) Request for review of a permit action that is exempt under WAC 173-400-110(5) (Table 110(5) emission-based exemption levels); or
(D) Changes requiring mandatory public comment under WAC 173-400-171.
(d) The fee for a permit modification (as defined in WAC 173-400-030) is located in subsection (2)(a) or (b) of this section.
(4) Request to extend approval to construct or modify a stationary source issued under minor new source review that is set to expire (WAC 173-400-111(7)): One hundred dollars.
An applicant may request an eighteen-month extension of an approval to construct.
(5) Review of general order of approval (WAC 173-400-560).
(a) Category A general order.
(i) SEPA review complete: Five hundred dollars.
(ii) SEPA review required: Seven hundred eighty-five dollars.
(iii) Category A consists of the following general order of approval, including any subsequent updating or replacement:
(A) Concrete batch plants (No. 08-AQG-002);
(B) Diesel-powered emergency electrical generators (No. 06-AQG-006);
(C) Rich burn, spark ignition, gaseous fossil fuel-powered emergency electrical generators (No. 06-AQG-005);
(D) Perchloroethylene dry cleaners using less than 2100 gallons per year (No. 06-AQG-003);
(E) Rock crusher, stationary (06-AQG-004);
(F) Rock crusher, portable (07-AQG-001);
(G) Small water heaters and steam generating boilers (No. 08-AQG-003); and
(H) Automobile body repair and refinishing shops (No. 08-AQG-001).
(b) Category B general order.
(i) SEPA review complete: Eight hundred seventy-five dollars.
(ii) SEPA review required: One thousand one hundred sixty dollars.
(iii) Category B includes a general order of approval developed on or after January 1, 2011. This covers, but is not limited to, portable and stationary asphalt plants (No. 10AQ-G0-01).
(6) Review of relocation notice (WAC 173-400-036) or notification form (WAC 183-400-560).
(a) This fee applies to a portable source with an approval order from another permitting agency who intends to relocate in ecology's jurisdiction.
(i) Relocation notice - SEPA review complete: One hundred fifty dollars.
(ii) Relocation notice - SEPA review required: Four hundred thirty-five dollars.
(b) This fee applies to a portable source operating under an ecology issued approval order or through coverage under an ecology issued general order of approval.
(i) Air quality notification form - SEPA review complete: No fee.
(ii) Air quality notification form - SEPA review required: Two hundred eighty-five dollars.
(7) Request to establish a voluntary emission limit (WAC 173-400-091): Five hundred dollars plus an hourly rate of ninety-five dollars after six hours.
(a) This fee covers up to six hours of staff time to review the request and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the request above six hours.
(b) This fee applies to a regulatory order issued under WAC 173-400-091 that places a limit on emissions.
(i) This fee applies to a request to establish the emission limit in a stand-alone regulatory order.
(ii) This fee does not apply when an emission limit is included as one of many conditions in an approval order for a notice of construction application.
(8) Request to replace or substantially alter control technology: Refer to WAC 173-455-100(4) for fee schedule.
Major new source review preapplication and permit fees.
(9) Request for a written prevention of significant deterioration applicability determination (WAC 173-400-720): Five hundred dollars plus an hourly rate of ninety-five dollars after six hours.
This fee covers up to six hours of staff time to review the request and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the request above six hours.
(10) Prevention of significant deterioration (PSD) (WAC 173-400-720 and 173-400-730).
(a) PSD permit application: Fifteen thousand dollars plus an hourly rate of ninety-five dollars after one hundred fifty-eight hours.
This fee covers one hundred fifty-eight hours of staff time to review the application and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the application above one hundred fifty-eight hours.
(b) PSD permit application where greenhouse gases are the sole PSD pollutant being reviewed: Seven thousand five hundred dollars plus an hourly rate of ninety-five dollars after seventy-nine hours.
This fee covers seventy-nine hours of staff time to review the application and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the application above seventy-nine hours.
(11) Revision to a prevention of significant deterioration permit (WAC 173-400-750).
(a) Administrative revision as defined in WAC 173-400-750(3): One thousand nine hundred dollars plus an hourly rate of ninety-five dollars after twenty hours.
This fee covers twenty hours of staff time to review the application and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the application above twenty hours.
(b) All other revisions (except major modification): Seven thousand five hundred dollars plus an hourly rate of ninety-five dollars after seventy-nine hours.
This fee covers seventy-nine hours of staff time to review the application and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the application above seventy-nine hours.
(c) The fee for a major modification of a PSD permit (as defined in WAC 173-400-720) is located in subsection (10)(a) of this section.
(12) Request to extend the following major source approvals that are set to expire: Five hundred dollars. This provision applies to each of the following:
(a) PSD permit, including a major modification;
(b) PSD permit revision;
(c) Approval order for major source nonattainment area permitting; and
(d) A change to an approval order for major source nonattainment area permitting.
(13) Nonattainment area major new source review.
(a) A notice of construction application subject to major source nonattainment area permitting requirements in WAC 173-400-830: Fifteen thousand dollars plus an hourly rate of ninety-five dollars after one hundred fifty-eight hours.
This fee covers one hundred fifty-eight hours of staff time to review the application and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the application above one hundred fifty-eight hours.
(b) Change to an approval order issued under major source nonattainment area major permitting requirements (WAC 173-400-111 (3)(c) and 173-400-830):
(i) Request to change permit conditions under WAC 173-400-111(8) that is not subject to mandatory public comment in WAC 173-400-171: One thousand nine hundred dollars plus an hourly rate of ninety-five dollars after twenty hours.
This fee covers twenty hours of staff time to review the application and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the application above twenty hours.
(ii) All other permit changes (except major modification): Seven thousand five hundred dollars plus an hourly rate of ninety-five dollars after seventy-nine hours.
This fee covers seventy-nine hours of staff time to review the application and make a final determination. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the application above seventy-nine hours.
(iii) The fee for a major modification (as defined in WAC 173-400-810) of an approval order is located in subsection (13)(a) of this section.
(14) Plant-wide applicability limits (WAC 173-400-720).
(a) Request to establish new plant-wide applicability limits: Fifteen thousand dollars plus an hourly rate of ninety-five dollars after one hundred fifty-eight hours.
This fee covers up to one hundred fifty-eight hours of staff time to review the request and establish a plant-wide applicability limit. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the request above one hundred fifty-eight hours.
(b) All other requests, such as increase or renew plant-wide applicability limits; or process an expired plant-wide applicability limit: Seven thousand five hundred dollars plus an hourly rate of ninety-five dollars after seventy-nine hours.
This fee covers up to seventy-nine hours of staff time to increase, renew or process a retired plant-wide applicability limit. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the request above seventy-nine hours.
Other fees.
(15) Second tier review (WAC 173-460-090): Ten thousand dollars plus an hourly rate of ninety-five dollars after one hundred six hours.
(a) This fee covers up to one hundred six hours of staff time to evaluate the health impact assessment protocol and second tier petition, and make a final recommendation. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the second tier petition above one hundred six hours.
(b) A second tier petition that becomes subject to third tier review during the course of evaluation continues as a second tier petition for billing purposes. Staff must sum the time spent on this petition and bill the applicant if the total hours exceed one hundred six hours.
(16) Third tier review (WAC 173-460-100): Ten thousand dollars plus an hourly rate of ninety-five dollars after one hundred six hours.
(a) This fee covers up to one hundred six hours of staff time to evaluate the health impact assessment protocol and third tier petition, and make a final recommendation. Ecology will bill the applicant ninety-five dollars per hour for each additional hour spent on the second tier petition above one hundred six hours.
(b) This fee does not apply to a second tier petition that becomes a third tier petition.
(17) Ecology may enter into a written cost-reimbursement agreement with an applicant as provided in RCW 70.94.085. Ecology will be reimbursed at a rate of ninety-five dollars per hour.
(18) Small business fee reduction. The new source review
fee identified in subsections (2) ((and (3))) through (7) of
this section may be reduced for a small business.
(a) To qualify for the small business new source review fee reduction, a business must meet the requirements of "small business" as defined in RCW 19.85.020. In RCW 19.85.020, "small business" means any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, that has the purpose of making a profit, and that has fifty or fewer employees.
(b) To receive a fee reduction, the owner or operator of a small business must include information in the application demonstrating that the conditions of (a) of this subsection have been met. The application must be signed:
(i) By an authorized corporate officer in the case of a corporation;
(ii) By an authorized partner in the case of a limited or general partnership; or
(iii) By the proprietor in the case of a sole proprietorship.
(c) Ecology may verify the application information and, if the owner or operator has made false statements, deny the fee reduction request and revoke previously granted fee reductions.
(d) For small businesses determined to be eligible under (a) of this subsection, the new source review fee shall be reduced to the greater of:
(i) Fifty percent of the new source review fee; or
(ii) Two hundred fifty dollars.
(e) If, due to special economic circumstances, the fee reduction determined under (d) of this subsection imposes an extreme hardship on a small business, the small business may request an extreme hardship fee reduction. The owner or operator must provide sufficient evidence to support a claim of an extreme hardship. The factors which ecology may consider in determining whether an owner or operator has special economic circumstances and in setting the extreme hardship fee include: Annual sales; labor force size; market conditions which affect the owner's or operator's ability to pass the cost of the new source review fees through to customers; and average annual profits. In no case will a new source review fee be reduced below one hundred dollars.
(((5))) (19) Fee reductions for pollution prevention
initiatives. Ecology may reduce the fees defined in
subsections (2) ((and (3))) through (7) of this section where
the owner or operator of the proposed source demonstrates that
approved pollution prevention measures will be used.
(((6) Fee payments. Fees specified in subsections (2)
through (5) of this section shall be paid at the time a notice
of construction application is submitted to the department. A
notice of construction application is considered incomplete
until ecology has received the appropriate new source review
payment. Additional charges assessed pursuant to subsection
(3) of this section shall be due thirty days after receipt of
an ecology billing statement. All fees collected under this
regulation shall be made payable to the Washington department
of ecology.
(7) Dedicated account. All new source review fees collected by the department shall be deposited in the air pollution control account.
(8))) (20) Tracking revenues, time, and expenditures. Ecology ((shall)) must track revenues collected under this
subsection on a source-specific basis. ((Ecology shall track
time and expenditures on the basis of complexity categories.
(9))) (21) Periodic review. To ensure that fees cover
the cost of processing the actions in this section, ecology
shall review and((, as appropriate,)) update this section ((at
least once every two years)) as necessary.
[Statutory Authority: RCW 70.94.181, [70.94.]152, [70.94.]331, [70.94.]650, [70.94.]745, [70.94.]892. 07-11-018 (Order 06-14), § 173-455-120, filed 5/3/07, effective 6/3/07.]
[Statutory Authority: RCW 70.94.181, [70.94.]152, [70.94.]331, [70.94.]650, [70.94.]745, [70.94.]892. 07-11-018 (Order 06-14), § 173-455-140, filed 5/3/07, effective 6/3/07.]