CHAPTER 121

FORMERLY

SENATE BILL NO. 195

AS AMENDED BY SENATE AMENDMENT NO. 2

AN ACT TO AMEND TITLE 7, CHAPTER 60, DELAWARE CODE RELATING TO THE CREATION AND FUNDING OF THE CLEAN AIR ACT TITLE V OPERATING PERMIT PROGRAM TO COMPLY WITH THE FEDERAL CLEAN AIR ACT AMENDMENTS OF 1990.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (three-fifths of all members elected to each House thereof concurring therein):

Section 1. Amend Title 7, Chapter 60 of the Delaware Code by adding a new subchapter to read as follows:

"SUBCHAPTER VII. CLEAN AIR ACT TITLE V OPERATING PERMIT PROGRAM.

§6095. Applicability.

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

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

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

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

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

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

(1) any other sources designated by the Department or mandated for designation by the United States Environmental Protection Agency.

§6096. Title V Account.

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

§6097. Fees.

(a) The Department shall collect an annual fee from permittees of sources that are required to obtain a permit pursuant to the Title V Program. The annual fee shall be utilized solely to pay for all direct and indirect costs required to develop, administer and implement the Program.

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

(c) The Department shall adopt fee regulations that will establish the amounts and methods of collection of any permit fees which will result in the collection, in the aggregate, from the sources listed in paragraph (a), of a fee in dollars per ton of actual emissions of each regulated air pollutant, except carbon monoxide, in an amount as follows:

(1) for calendar year 1993, $15.00 per ton, effective 7/1/93;

(2) for calendar year 1994. $19.00 per ton;

(3) for calendar years 1995 and 1996, the actual dollar amount equal to 25 constant 1989 dollars, as established by the federal Consumer Price Index for all-urban consumers published by the United States Department of Labor.

(d) In determining the amount of tons of actual emissions, the

Department shall not be required to include any amount of regulated air pollutant emitted by any source in excess of 4,000 tons per year of that regulated air pollutant or $150,000 per source whichever is the lesser amount. The determination of common control or common ownership shall be consistent with the requirements of 40 C.F.R. Part 70.

(e) Any funds collected under this section shall be deposited in the Account as described in §6096 of this Chapter and shall be used solely for administering the Program.

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

§6098. Title V Operating Permit Program Advisory Committee.

There shall be established a 'Title V Operating Permit Program Advisory Committee', hereinafter referred to as 'Committee'. The Committee members shall be appointed by the Governor and shall include, but not be limited to, the Secretary of the Department of Natural Resources and Environmental Control, or his duly appointed designee; the Director of Air and Waste Management, or his duly appointed designee; two members who will represent stationary sources; one to be a member of the Chemical Industry Council; a member of the Delaware State Chamber of Commerce; a member representing a public utility; two members of a nationally affiliated or State environmental advocacy group; and the Chairpersons of the House and the Senate Natural Resource Committees. The Secretary of the Department of Natural Resources and Environmental Control shall serve as the Chair of this Committee. The Committee shall advise and assist the Department in developing a streamlined permit application process, conduct a pilot program to determine the real costs for implementation of Title V utilizing the streamlined permit application process and project the appropriate fees necessary to be established in subsequent years by this subchapter to support the Title V Program. The Committee shall report its findings to the General Assembly by April 1, 1994 as to whether the existing fee is adequate to support the Title V Program. The Committee shall report to the General Assembly each year thereafter through December 1996."

Approved July 13, 1993.