NY Env Conserv L § 72-0303 (2021)
2021 New York Laws ENV - Environmental Conservation Article 72 - Environmental Regulatory Program Fees Title 3 - Air Quality Control Program Fee 72-0303 - Operating Permit Program Fees.

§ 72-0303. Operating permit program fees.1.  Commencing  January  first,  two  thousand  fifteen and every year   thereafter,  all  sources  of  regulated  air  contaminants   identified   pursuant  to  subdivision  one  of section 19-0311 of this chapter shall   submit to the department an annual base fee of two thousand five hundred   dollars. This base fee shall be in addition to the  fees  listed  below.   Commencing  January  first,  nineteen hundred ninety-four and every year   thereafter all sources of regulated air contaminants identified pursuant   to subdivision one of section 19-0311 of this chapter  shall  submit  to   the  department  an  annual fee not to exceed the per ton fees described   below. The per ton fee is assessed on each ton of emissions up to  seven   thousand  tons  annually  of  each regulated air contaminant as follows:   sixty dollars per ton for facilities with total emissions less than  one   thousand  tons  annually;  seventy  dollars  per ton for facilities with   total emissions of one thousand or more but less than two thousand  tons   annually;  eighty dollars per ton for facilities with total emissions of   two thousand or more but less than  five  thousand  tons  annually;  and   ninety  dollars  per  ton  for  facilities  with total emissions of five   thousand or more tons annually. Such fee shall be sufficient to  support   an appropriation approved by the legislature for the direct and indirect   costs  associated  with  the  operating  permit  program  established in   section 19-0311 of this chapter. Such fee shall be  established  by  the   department and shall be calculated by dividing the amount of the current   year  appropriation  from  the  operating  permit program account of the   clean air  fund  by  the  total  tons  of  emissions  of  regulated  air   contaminants  that are subject to the operating permit program fees from   sources subject to the operating  permit  program  pursuant  to  section   19-0311  of  this  chapter  up  to  seven thousand tons annually of each   regulated air contaminant from each source;  provided  that,  in  making   such  calculation,  the  department  shall  adjust  their calculation to   account for any deficit or  surplus  in  the  operating  permit  program   account   of   the  clean  air  fund  established  pursuant  to  section   ninety-seven-oo of the state finance law; any loan  repayment  from  the   mobile  source  account  of  the  clean air fund established pursuant to   section ninety-seven-oo of the  state  finance  law;  and  the  rate  of   collection  by  the  department  of the bills issued for the fee for the   prior year.Notwithstanding the provisions of the state  administrative  procedure   act,  such  calculation  and  fee  shall  be  established  as  a rule by   publication in the Environmental Notice Bulletin no  later  than  thirty   days  after  the  budget  bills making appropriations for the support of   government are enacted or July first, whichever is later,  of  the  year   such fee will be effective. In no event shall the fee established herein   be any greater than the maximum fee identified pursuant to this section.2. Bills issued for the fee shall be based on actual emissions for the   prior  calendar  year, as demonstrated to the department's satisfaction,   or in the absence of such demonstration,  on  permitted  emissions,  or,   where  there  is  no  permit,  on potential to emit. Persons required to   submit an emissions statement to the department shall use such statement   to demonstrate actual emissions under this section.3. Effective January  first,  nineteen  hundred  ninety-seven  through   December    thirty-first,    nineteen    hundred    ninety-eight,    and   notwithstanding the requirements of the state  administrative  procedure   act,  the  cap  of  twenty-five  dollars  per  ton shall increase by the   percentage, if any, by  which  the  consumer  price  index  exceeds  the   consumer price index for the calendar year nineteen hundred eighty-nine.a.  The  consumer  price index for any calendar year is the average of   the consumer price index for all urban consumers published by the United    States department of labor, as of the close of the  twelve-month  period   ending on August thirty-first of each calendar year.b.  The  revision  of  the  consumer price index for the calendar year   nineteen hundred eighty-nine shall be used in the event  the  department   of labor revises its method of determining the consumer price index.4. The fees established pursuant to this section shall not be assessed   on  emissions  of carbon monoxide or any class I or II substance subject   to a standard promulgated pursuant to section 7671 of the Act.5. Any regulated air contaminant subject to the fees imposed  pursuant   to  this section which qualifies as both a volatile organic compound and   a hazardous air pollutant regulated pursuant to section 7412 of the  Act   shall  not be counted under both categories for the purpose of assessing   fees.6. On  or  before  April  first,  nineteen  hundred  ninety-four,  and   biennially thereafter, the department of audit and control shall prepare   and  submit  to  the governor and the legislature an audit on the fiscal   status of the operating  permit  program  created  pursuant  to  section   19-0311 of this chapter. Such audit shall include:a.  an  assessment  of  the  actual  direct  and indirect costs of the   operating permit program incurred, and the revenues received  from  fees   imposed  pursuant  to  this  section  and  penalties imposed pursuant to   subdivision twelve  of  section  72-0201  of  this  article  during  the   previous fiscal year;b.  an  estimate  of  the  direct  and indirect costs of the operating   permit program that will be incurred, and the revenues estimated  to  be   received  from  fees  imposed  pursuant  to  this  section and penalties   imposed pursuant to  subdivision  twelve  of  section  72-0201  of  this   article during the current fiscal year; andc. an estimate of any balance in the account that will be available at   the end of the current fiscal year.7.  Any  person  required to pay fees imposed pursuant to this section   may elect to base such fees on the  level  of  permitted  emissions  set   forth  in  a  permit, certificate or approval issued pursuant to section   19-0311 of this chapter.8. The department  may  reduce  the  fee  charged  for  categories  of   stationary  sources, taking into account the financial resources of such   sources, consistent with the provisions of section 7661f(f) of the Act.9. If a city or county shall be delegated the authority to  administer   the  operating permit program established pursuant to section 19-0311 of   this chapter it may  collect  the  fees  established  pursuant  to  this   section  and  no  additional liability for fees under this section shall   accrue for any such source.10. No later than September thirtieth,  nineteen  hundred  ninety-four   and  before  September thirtieth of each subsequent year, the department   shall report to the governor, the  legislature  and  the  department  of   audit  and  control  on: (i) the actual direct and indirect costs of the   operating permit program incurred, and the revenues received pursuant to   fees imposed by this section, during the previous fiscal year; (ii)  the   estimated direct and indirect costs of the operating permit program that   will  be  incurred, and the anticipated revenues received or anticipated   to be received pursuant to fees imposed  by  this  section,  during  the   current  fiscal year; (iii) an estimate of the direct and indirect costs   of the operating permit program that will be incurred, and the  tonnages   of  pollutants  anticipated  to  be  subject to the fees imposed by this   section, during the subsequent fiscal year;  (iv)  an  estimate  of  any   balance  in  the  operating permit program account of the clean air fund   that will be available at the end of the  current  fiscal  year;  (v)  a   recommendation  regarding  adjustments  to  the  fees imposed under this    section necessary to assure that the operating  permit  program  account   has  adequate  funds  to  finance  the  direct  and indirect cost of the   operating permit program during future fiscal years; and (vi) the number   of  operating  permit  applications  upon which the department has taken   final action in the previous fiscal year, the average  review  time  per   permit,  the  number of person hours spent per permit, and the number of   completed permit applications which are pending  final  action.  Reports   and  accountings  required  to  be  filed  with the administrator of the   United States environmental protection agency may serve to satisfy  this   requirement.