TITLE 7

Conservation

Natural Resources

CHAPTER 60. ENVIRONMENTAL CONTROL

Subchapter VIII. Clean Air Act Title V Operating Permit Program


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;

(2) 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;

(3) 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;

(4) 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;

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

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

69 Del. Laws, c. 121, § 1.;

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.

69 Del. Laws, c. 121, § 1.;

(a) The Department shall collect an annual fee from sources that are required to obtain a Title V Operating Permit pursuant to the Title V Program and from sources who voluntarily limit their potential to emit to below Title V applicability thresholds as set forth in § 6095 of this title (i.e., a synthetic minor facility). The annual fees 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 collect annual fees, payable annually or in quarterly installments, during calendar years 2015, 2016, and 2017, from each source that is required to pay the annual fee as set forth in subsection (a) of this section. The Title V Operating Permit Program Advisory Committee may review and recommend modifications to the 2017 fee schedule should measurable operating efficiencies be gained through ongoing Title V Operating Permit Program improvement initiatives. The annual fee for each subject source will be determined by the sum of 2 component fees: a base fee and a user fee. For sources that are identified in the 2011 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants or sources that have applied for a Title V Operating Permit or synthetic minor facility permit by December 31, 2014, the base fee and the user fee shall be calculated as set forth in subsections (d) and (e) of this section. For all other sources the base fee and user fee shall be calculated as set forth in subsection (f) of this section.

(d)(1) The base fee relates to services that are common to all sources subject to the program. These services include activities such as permit issuance and renewals; stationary source regulation development; ambient monitoring; emission inventory; control strategy development; and development, administration and implementation of 2 additional programs: the Small Business Stationary Source Technical and Environmental Compliance Program and a portion of the accidental release prevention program.

(2) In calendar years 2015, 2016, and 2017, the Department will place each subject source into 1 of the following 11 categories:

Category A           Greater than 6,000 hours will pay $ 277,020

Category B           from 5,001 to 6,000 hours will pay $ 108,300

Category C           from 4,001 to 5,000 hours will pay $  93,480

Category D           from 3,001 to 4,000 hours will pay $  80,940

Category E           from 2,001 to 3,000 hours will pay $  57,000

Category F           from 1,501 to 2,000 hours will pay $  42,180

Category G           from 1,001 to 1,500 hours will pay $  28,500

Category H           from 667 to 1,000 hours will pay $  18,240

Category I           from 334 to 666 hours will pay $   9,120

Category J           from 0 to 333 hours will pay $   5,700

Category K           New sources that have applied for a per-

mit after January 1, 2014, will pay $  6,840.

(3) The Department's category determination pursuant to paragraph (d)(2) of this section shall be based upon 5 years' data of engineering, compliance, and enforcement hours expended for each facility from 2009 to 2013. The Department will continue to track the actual hours spent processing Title V permits and performing other related services under the Title V program. This information may be used in the evaluations of the Title V program associated with the expiration of this statute on December 31, 2017.

(e)(1) The user fee relates to activities not identified in subsection (d) of this section for the Program, such as: development, administration, and implementation of a compliance and enforcement program; implementation and enforcement of the terms of any Title V Operating Permit or synthetic minor permit; permit revisions or amendments, including the development of an applicable requirement as part of the processing of the permit issuance, revision or amendment; the supporting and tracking of data; modeling; and adequate resources to determine which sources are subject to the Program. Such fees shall be based on the emissions of each air contaminant, in whole tons and in the aggregate, excluding carbon monoxide (CO) and particulate matter less than 2.5 microns (PM2.5), as listed in the 2011 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants.

(2) In calendar years 2015, 2016, and 2017, the Department will place each subject source into 1 of the following 10 categories:

Category 1           Greater than 2,000 tons will pay $ 350,000

Category 2           from 1,001 to 2,000 tons will pay $ 100,000

Category 3           from 501 to 1,000 tons will pay $  60,000

Category 4           from 201 to 500 tons will pay $  28,000

Category 5           from 101 to 200 tons will pay $  12,000

Category 6           from 51 to 100 tons will pay $   9,000

Category 7           from 26 to 50 tons will pay $   6,000

Category 8           from 6 to 25 tons will pay $   4,100

Category 9           from 0 to 5 tons will pay $   3,950

Category 10           New sources that have applied for a per

mit after January 1, 2014, will pay $  6,000.

(f) Sources not included in the 2011 Delaware Point Source Emission Inventory of Estimated Actual Regulated Air Contaminants or sources that have not applied for a Title V Operating Permit or synthetic minor facility permit by December 31, 2014, shall be assessed a base fee that is consistent with the categories and amounts specified in subsection (d) of this section. The estimated hours on which the base fee assessment is calculated shall include an evaluation of specific regulatory applicability to the source. This shall include, but is not limited to, the following: new source review; new source performance standards; toxic requirements, to include maximum achievable control technology and National Emission Standards for Hazardous Air Pollutants; and continuous emission monitoring requirements. Such sources shall also be assessed a user fee based upon allowable emissions specified in its permit that is consistent with the categories and amounts specified in subsection (e) of this section.

(g)(1) In calendar years 2015, 2016, 2017, 2018, 2019, and 2020, the Department will grant sources with an active Title V or synthetic minor permit on or before December 31, 2014, and without delinquent accounts, annual user fee credits. The credit shall be determined by the categorical status of a qualifying facility in calendar year 2014. User fee credits for 2015, 2016, and 2017 will be calculated as a percentage of the total Program annual fee reduction amount of $300,000. Eligible facilities will be granted the following fee credit percentages by category established under paragraph (e)(2) of this section:

Category 1           Will receive a credit of 26.25% of $300,000

Category 2           Will receive a credit of 7.50% of $300,000

Category 3           Will receive a credit of 4.50% of $300,000

Category 4           Will receive a credit of 2.10% of $300,000

Category 5           Will receive a credit of 0.90% of $300,000

Category 6           Will receive a credit of 0.68% of $300,000

Category 7           Will receive a credit of 0.45% of $300,000

Category 8           Will receive a credit of 0.30% of $300,000

Category 9           Will receive a credit of 0.30% of $300,000

Category 10           Will receive a credit of 0%.

(2) The 2018, 2019, and 2020 total Program annual fee reduction amount will be reviewed and adjusted by the Title V Operating Permit Program Advisory Committee as part of the 2018 through 2020 fee negotiation cycle. Fee reduction credit will be terminated on December 31, 2020.

(h) These fees may be increased on an annual basis by no more than the Federal Consumer Price Index for the previous calendar year. Any increases in fees are subject to review and approval by the committee established pursuant to § 6099 of this title. After December 31, 2017, no fees shall be collected pursuant to this section unless authorized by a further act of the General Assembly. The Department shall consult with the Title V Operating Permit Program Advisory Committee prior to any proposed increase to the complement of full-time equivalent employees funded in whole or in part by the Program.

(i) Annual fees must be paid in full by the end of each calendar year 2015, 2016, and 2017. Any delinquent subject source shall be subject to a 2% compounding monthly interest rate for each month overdue. Each source is required to pay its annual fee. The Department has the authority to revoke a Title V permit on the sole basis that the annual fee has not been paid. Sources that have not paid their annual fee may be given notice that their Title V permit will be revoked for nonpayment of the fee. No permit shall be revoked without 60 days written notice or prior to 3 months past the due date for the fee. Cancellation of the permit shall not relieve the source of the obligation to pay the last year's fee. The Department shall track payment records of overdue and delinquent sources and shall document actions taken to recover delinquent fees. The Department shall include a detailed summary of delinquent facilities in the Title V Annual Status report, including the amount owed and the documented action taken by the Department to collect such fees.

(j) In determining the amount of tons of actual emissions, the Department shall not be required to include any amount of air contaminant emitted by any source in excess of 4,000 tons per year of that air contaminant. The determination of common control or common ownership shall be consistent with the requirements of 40 C.F.R. Part 70.

(k) Any funds collected under this section shall be deposited in the account as described in § 6096 of this title, shall be interest earning, and shall be used solely to develop, administer and implement the Program. The Secretary shall cause an audit of the fiscal affairs to be made annually and shall furnish a copy of such audit report together with such additional information or data with respect to the affairs as the Secretary may deem desirable to the Title V Operating Permit Program Advisory Committee.

(l) The Department will continue to track for each source the actual hours spent processing Title V permits and performing other related services under the Title V program and shall, as part of the annual fee assessment, provide each source with the number of said hours expended during the preceding year. The Division of Air Quality will develop, by May 1 of each year, the overall program costs, the fees collected, current staffing levels, program accomplishments, and each subject source's total hours for the preceding calendar year in report form and present this report at an annual meeting with the Title V Operating Permit Program Advisory Committee. The Division of Air Quality shall publish a notice announcing the availability of the report in a paper of general circulation throughout the State. Additionally, the Division shall mail a copy of said notice to the personnel on the Division of Air Quality's mailing lists.

(m)(1) The Title V Operating Permit Program Advisory Committee shall be assembled by the Division of Air Quality to aid in the development of a management system review performed by an independent third party of the Title V air permitting scope, funding, and revenue generation process. The goal of this review will be to enhance the Division of Air Quality's existing performance initiatives to ensure that the Division of Air Quality is properly focused on the efficient and effective use of annual fees collected from affected facilities in order to sustain the requirements of the Title V Program, as well as by deploying manpower resources and technologies to optimize services, and to ensure the development of a fair, balanced, and sustainable Title V revenue generation program. The Title V Operating Permit Program Advisory Committee shall also review the proposal and scope of work and participate in the selection of the independent third party performing the review.

(2) In performing the management system review, the independent third party will:

a. Seek input from affected stakeholders;

b. Review the Department's Title V requirements and funding allocation processes;

c. Review and adhere to EPA guidance and memoranda related to annual fees;

d. Ensure that the Title V Program has the necessary resources and procedures to fulfill its mission; and

e. Recommend any technological adaptations to ensure that the Department's Title V process is "right-sized" for the future.

(3) The independent third party shall issue a report, objectives of which shall include:

a. How the Division of Air Quality can build upon the strength of the value stream mapping process, which is presently incorporated into the non-Title V construction and operating permit processes.

b. How the Division of Air Quality can optimize the Title V permit processing, public hearing, regulation development, air monitoring, and reporting processes.

c. How the Division of Air Quality can optimize staff levels to ensure that a viable and responsive work force is adequately trained and utilized considering employee turnover and new employee replacement hiring.

d. How the Division of Air Quality can improve the emissions inventory process to help develop a timely, sustainable, and just annual fee collection system for future years.

(4) The Division of Air Quality will begin the process to hire the independent third party to conduct the management system review by September 1, 2014. The management system review shall be targeted for completion by December 31, 2015. Study results and recommendations shall be incorporated into the next cycle of annual fee legislation development. This 1-time management system review is to be funded by the existing annual fee balance with a total cost not to exceed $100,000.

69 Del. Laws, c. 121, § 1; 70 Del. Laws, c. 8, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 214, § 1; 73 Del. Laws, c. 318, § 1; 73 Del. Laws, c. 381, § 1; 75 Del. Laws, c. 172, §§ 1-5; 76 Del. Laws, c. 73, § 1; 76 Del. Laws, c. 312, § 1-7; 77 Del. Laws, c. 430, §§ 54, 55; 78 Del. Laws, c. 110, §§ 1-15; 79 Del. Laws, c. 430, § 1.;

Except for sources required to have a permit before construction or modification under the applicable requirements of this subchapter, 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 subchapter, 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.

72 Del. Laws, c. 214, § 3; 79 Del. Laws, c. 430, § 2.;

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 the Secretary's duly appointed designee; the Director of the Division of Air Quality, or the Director's duly appointed designee; 2 members who will represent stationary sources; 1 to be a member of the Chemical Industry Council; a member of the Delaware State Chamber of Commerce; a member representing a public utility; 2 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 provide the Governor and the General Assembly with a report on or before February 1 of each year, for the previous calendar year, identifying the amounts and sources of fees collected pursuant to § 6097 of this title, the expenditures made by the Department to implement the Program, information regarding the performance of the Program, whether the fees collected by § 6097 of this title are adequate to ensure the effective implementation of the Program, and recommendations to remedy or improve any deficiencies or elements of the Program.

69 Del. Laws, c. 121, § 1; 70 Del. Laws, c. 8, § 3; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 214, §§ 2, 4; 73 Del. Laws, c. 381, § 2; 76 Del. Laws, c. 312, § 8; 77 Del. Laws, c. 430, § 56; 78 Del. Laws, c. 110, § 16.;