N.Y. ENV Law § 72-0303

§ 72-0303. Operating permit program fees.\n 1. Commencing January first, nineteen hundred ninety-four and every\nyear thereafter all sources of regulated air contaminants identified\npursuant to subdivision one of section 19-0311 of this chapter shall\nsubmit to the department an annual fee of forty-five dollars per ton up\nto seven thousand tons annually of each regulated air contaminant as\nfollows: forty-five dollars per ton for facilities with total emissions\nless than one thousand tons annually; fifty dollars per ton for\nfacilities with total emissions of one thousand or more but less than\ntwo thousand tons annually; fifty-five dollars per ton for facilities\nwith total emissions of two thousand or more but less than five thousand\ntons annually; and sixty-five dollars per ton for facilities with total\nemissions of five thousand or more tons annually. Such fee shall be\nsufficient to support an appropriation approved by the legislature for\nthe direct and indirect costs associated with the operating permit\nprogram established in section 19-0311 of this chapter. Such fee shall\nbe established by the department and shall be calculated by dividing the\namount of the current year appropriation from the operating permit\nprogram account of the clean air fund by the total tons of emissions of\nregulated air contaminants that are subject to the operating permit\nprogram fees from sources subject to the operating permit program\npursuant to section 19-0311 of this chapter up to seven thousand tons\nannually of each regulated air contaminant from each source; provided\nthat, in making such calculation, the department shall adjust their\ncalculation to account for any deficit or surplus in the operating\npermit program account of the clean air fund established pursuant to\nsection ninety-seven-oo of the state finance law; any loan repayment\nfrom the mobile source account of the clean air fund established\npursuant to section ninety-seven-oo of the state finance law; and the\nrate of collection by the department of the bills issued for the fee for\nthe prior year.\n Notwithstanding the provisions of the state administrative procedure\nact, such calculation and fee shall be established as a rule by\npublication in the Environmental Notice Bulletin no later than thirty\ndays after the budget bills making appropriations for the support of\ngovernment are enacted or July first, whichever is later, of the year\nsuch fee will be effective. In no event shall the fee established herein\nbe any greater than the maximum fee identified pursuant to this section.\n 2. Bills issued for the fee shall be based on actual emissions for the\nprior calendar year, as demonstrated to the department's satisfaction,\nor in the absence of such demonstration, on permitted emissions, or,\nwhere there is no permit, on potential to emit. Persons required to\nsubmit an emissions statement to the department shall use such statement\nto demonstrate actual emissions under this section.\n 3. Effective January first, nineteen hundred ninety-seven through\nDecember thirty-first, nineteen hundred ninety-eight, and\nnotwithstanding the requirements of the state administrative procedure\nact, the cap of twenty-five dollars per ton shall increase by the\npercentage, if any, by which the consumer price index exceeds the\nconsumer price index for the calendar year nineteen hundred eighty-nine.\n a. The consumer price index for any calendar year is the average of\nthe consumer price index for all urban consumers published by the United\nStates department of labor, as of the close of the twelve-month period\nending on August thirty-first of each calendar year.\n b. The revision of the consumer price index for the calendar year\nnineteen hundred eighty-nine shall be used in the event the department\nof labor revises its method of determining the consumer price index.\n 4. The fees established pursuant to this section shall not be assessed\non emissions of carbon monoxide or any class I or II substance subject\nto a standard promulgated pursuant to section 7671 of the Act.\n 5. Any regulated air contaminant subject to the fees imposed pursuant\nto this section which qualifies as both a volatile organic compound and\na hazardous air pollutant regulated pursuant to section 7412 of the Act\nshall not be counted under both categories for the purpose of assessing\nfees.\n 6. On or before April first, nineteen hundred ninety-four, and\nbiennially thereafter, the department of audit and control shall prepare\nand submit to the governor and the legislature an audit on the fiscal\nstatus of the operating permit program created pursuant to section\n19-0311 of this chapter. Such audit shall include:\n a. an assessment of the actual direct and indirect costs of the\noperating permit program incurred, and the revenues received from fees\nimposed pursuant to this section and penalties imposed pursuant to\nsubdivision twelve of section 72-0201 of this article during the\nprevious fiscal year;\n b. an estimate of the direct and indirect costs of the operating\npermit program that will be incurred, and the revenues estimated to be\nreceived from fees imposed pursuant to this section and penalties\nimposed pursuant to subdivision twelve of section 72-0201 of this\narticle during the current fiscal year; and\n c. an estimate of any balance in the account that will be available at\nthe end of the current fiscal year.\n 7. Any person required to pay fees imposed pursuant to this section\nmay elect to base such fees on the level of permitted emissions set\nforth in a permit, certificate or approval issued pursuant to section\n19-0311 of this chapter.\n 8. The department may reduce the fee charged for categories of\nstationary sources, taking into account the financial resources of such\nsources, consistent with the provisions of section 7661f(f) of the Act.\n 9. If a city or county shall be delegated the authority to administer\nthe operating permit program established pursuant to section 19-0311 of\nthis chapter it may collect the fees established pursuant to this\nsection and no additional liability for fees under this section shall\naccrue for any such source.\n 10. No later than September thirtieth, nineteen hundred ninety-four\nand before September thirtieth of each subsequent year, the department\nshall report to the governor, the legislature and the department of\naudit and control on: (i) the actual direct and indirect costs of the\noperating permit program incurred, and the revenues received pursuant to\nfees imposed by this section, during the previous fiscal year; (ii) the\nestimated direct and indirect costs of the operating permit program that\nwill be incurred, and the anticipated revenues received or anticipated\nto be received pursuant to fees imposed by this section, during the\ncurrent fiscal year; (iii) an estimate of the direct and indirect costs\nof the operating permit program that will be incurred, and the tonnages\nof pollutants anticipated to be subject to the fees imposed by this\nsection, during the subsequent fiscal year; (iv) an estimate of any\nbalance in the operating permit program account of the clean air fund\nthat will be available at the end of the current fiscal year; (v) a\nrecommendation regarding adjustments to the fees imposed under this\nsection necessary to assure that the operating permit program account\nhas adequate funds to finance the direct and indirect cost of the\noperating permit program during future fiscal years; and (vi) the number\nof operating permit applications upon which the department has taken\nfinal action in the previous fiscal year, the average review time per\npermit, the number of person hours spent per permit, and the number of\ncompleted permit applications which are pending final action. Reports\nand accountings required to be filed with the administrator of the\nUnited States environmental protection agency may serve to satisfy this\nrequirement.\n