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Kenneth R. Reisinger Acting Deputy Secretary for Waste, Air and Radiation Management

Final Rulemaking Air Quality Fee Schedules 25 Pa. Code Chapters 121, 127 and 139 Environmental Quality Board November 16, 2010. Kenneth R. Reisinger Acting Deputy Secretary for Waste, Air and Radiation Management PA Department of Environmental Protection.

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Kenneth R. Reisinger Acting Deputy Secretary for Waste, Air and Radiation Management

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  1. Final RulemakingAir Quality Fee Schedules25 Pa. Code Chapters 121, 127 and 139Environmental Quality BoardNovember 16, 2010 Kenneth R. Reisinger Acting Deputy Secretary for Waste, Air and Radiation Management PA Department of Environmental Protection

  2. Final Rulemaking: Authority for Air Quality Fee Schedules Section 6.3(a) of the Air Pollution Control Act (APCA) authorizes the Board to establish fees sufficient to cover the indirect and direct costs of administering the air pollution control plan approval process and operating permit program required by Title V of the Clean Air Act. The fees established must also be sufficient to cover other CAA requirements including the cost of administering the Small Business Stationary Source Technical and Environmental Compliance Assistance Program and the Office of the Small Business Ombudsman.

  3. Final Rulemaking: Authority for Air Quality Fee Schedules Section 6.3(a) of the APCA also authorizes the Board to establish fees by regulation to support the authorized air pollution control program and activities which are not covered by fees required by Section 502 of the CAA. Section 6.3(c) of the APCA provides that the Board shall establish a permanent annual air emission fee for regulated pollutants as required by Section 502 of the CAA. This permanent emission fee does not apply to emissions in excess of 4,000 tons per year for any regulated pollutant.

  4. Final Rulemaking: Authority for Air Quality Fee Schedules The final rulemaking will affect the owners and operators of air contamination sources and including Title V facilities subject to the plan approval and permitting requirements of the CAA and APCA and implementing regulations. The universe of permitted sources in Pennsylvania includes approximately 887 Title V facilities and approximately 2,500 permitted non-Title V facilities.

  5. Final Rulemaking: Air Quality Fee Schedules • On June 3, 2010, EPA promulgated the Prevention of Significant Deterioration and Title V Greenhouse Gas (GHG) Tailoring Rule (Tailoring Rule) (75 FR 31514), which requires the permitting of GHGs starting January 2, 2011. • According to the Preamble for EPA’s “Tailoring Rule” GHGs will not be subject to Title V emissions fee programs. However, state and local agencies may establish other fees to cover the costs of implementing the federal GHG permitting program. • This final rulemaking, which was proposed prior to the issuance of EPA’s Tailoring Rule, does not impose Title V emission fees or permitting fees for greenhouse gases.

  6. Rulemaking Timetable for Air Quality Fee Schedules • July 16, 2009 – The Environmental Quality Board (EQB) approved the proposed rulemaking. • October 17, 2009 – Notice of the proposed rulemaking was published in the Pennsylvania Bulletin with a 66-day public comment period. • November 17-19, 2009 – Three public hearings were held in Harrisburg, Norristown, and Pittsburgh, respectively. • December 21, 2009 – The written comment period closed. • The Board received comments from 16 commentators and the Independent Regulatory Review Commission.

  7. Final Rulemaking: Air Quality Fee Schedules The final rulemaking amends the existing air quality fee schedules for the following: Plan approval fees including new source review, prevention of significant deterioration, new source performance standards and maximum achievable control technology application fees. Operating permit and annual operating permit administration fees. A new fee is established for Requests for Determinations.

  8. Final Rulemaking: Air Quality Fee Schedules • The final rulemaking amends the Title V application processing fee and the annual operating permit administration fee for certain sources EPA determines by regulation to be subject to Title V permitting requirements. • The base Title V emissions fee increases from $54 to $70 per ton for no more than 4,000 tons per year of each regulated pollutant. • A new fee schedule established under Chapter 139, Subchapter D requires fees for certain testing, auditing, and monitoring activities related to source testing and oversight. These fees are for stack testing, test report reviews, and auditing and monitoring activities related to continuous emissions monitoring systems.

  9. Final Rulemaking: Air Quality Fee Schedules (Chapters 127 and 139) • The final-form regulation amends 25 Pa. Code Section 127.701 to provide clarifying amendments and adds subsection (d) to require DEP to evaluate the fee schedules every five years and recommend regulatory amendments to the EQB to address any disparity between fee revenue and program costs. • In addition to minor clarifying changes in Chapter 139, Subchapter D, the scheduling of testing, auditing and monitoring fee requirements in 25 Pa. Code Section 139.201 include a new fee schedule for source testing activities such as the certification of continuous emission monitoring systems, review of source test reports, audits and other source testing activities.

  10. Final Rulemaking: Air Quality Fee Schedules -- Comparison of Title V Emission Fees

  11. Final Rulemaking: Air Quality Fee Schedules -- Major Public Comments Received • Some commentators support the proposed fee increase if the DEP can fully staff the program to process permits quickly. Others state that the fees make Pennsylvania uncompetitive in a poor economy. • Some commentators recommended that the DEP update the report prepared by Apogee Research, which helped establish the original fee schedule in 1994. Commentators questioned the need for the fee revision. • Certain commentators opposed the Title V emissions fee revision. One commentator opposed the imposition of Title V emission fees for greenhouse gases. • Commentators opposed the proposed fee for Requests for Determination. The Small Business Compliance Advisory Committee recommended waiving or lowering the fee for Requests for Determination submitted by small businesses. • Certain commentators opposed separate source testing and monitoring fees for Title V facilities, claiming they would be double-charged for the services.

  12. Final Rulemaking: Air Quality Fee Schedules -- Changes from Proposed to Final-Form Rulemaking • Three definitions related to continuous source monitoring systems were modified for clarity. • One definition related to “observer” was deleted as unnecessary. • The rulemaking was revised to implement the fee schedule in 2011 upon publication. The future year schedules were adjusted accordingly. Fee schedules for earlier years were deleted for clarity. • Section 127.702(h) was modified to clarify when an amendment to a plan approval or revision to an application will require a fee.

  13. Final Rulemaking: Air Quality Fee Schedules -- Advisory Committee Review • On October 18, 2010, the Department presented the final-form rulemaking to the Citizens Advisory Council. On October 19, 2010, the Council concurred with the Department’s recommendation to proceed to the Board. • On October 21, 2010, the Air Quality Technical Advisory Committee voted 8-5 to concur with the Department’s recommendation to present the final-form amendments to the Board for consideration as a final rulemaking. • On October 29, 2010, the Small Business Compliance Advisory Committee submitted a letter to Secretary Hanger stating that instituting a Request for Determination fee to cover staff time is reasonable but consideration should be given to waive or reduce the fee for small businesses as provided by Section 7.7(h) of the APCA.

  14. Final Rulemaking: Air Quality Fee Schedules -- Estimated Fee Impact • DEP estimates that in 2011, the fee amendments may increase revenue as follows: • Title V Emission Fees: $5.9 Million • Plan Approval/Operating Permit Fees: $760,000 • Source Testing/Auditing/Monitoring Fees: $1.4 Million. • The total fees collected will varying depending on the date of adoption of the final rulemaking, applications submitted to the DEP and emissions of regulated pollutants.

  15. Final Rulemaking: Air Quality Fee Schedules Recommendation • DEP recommends that the Board approve the Air Quality Fee Schedules final rulemaking. • DEP will submit the final rulemaking, if adopted, to the U.S. Environmental Protection Agency for approval as a revision to the State Implementation Plan.

  16. Kenneth R. Reisinger Acting Deputy Secretary for Waste, Air and Radiation Management Joyce E. Epps Director, Bureau of Air Quality Robert Reiley, Esq. Bureau of Regulatory Counsel

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