(1) The department and delegated local air authorities are authorized to determine, assess, and collect, and each permit program source shall pay, annual fees sufficient to cover the direct and indirect costs of implementing a state operating permit program approved by the United States environmental protection agency under the federal clean air act. However, a source that receives its operating permit from the United States environmental protection agency shall not be considered a permit program source so long as the environmental protection agency continues to act as the permitting authority for that source. Each permitting authority shall develop by rule a fee schedule allocating among its permit program sources the costs of the operating permit program, and may, by rule, establish a payment schedule whereby periodic installments of the annual fee are due and payable more frequently. All operating permit program fees collected by the department shall be deposited in the air operating permit account. All operating permit program fees collected by the delegated local air authorities shall be deposited in their respective air operating permit accounts or other accounts dedicated exclusively to support of the operating permit program. The fees assessed under this subsection shall first be due not less than forty-five days after the United States environmental protection agency delegates to the department the authority to administer the operating permit program and then annually thereafter.
The department shall establish, by rule, procedures for administrative appeals to the department regarding the fee assessed pursuant to this subsection.
(2) The fee schedule developed by each permitting authority shall fully cover and not exceed both its permit administration costs and the permitting authority's share of statewide program development and oversight costs.
(a) Permit administration costs are those incurred by each permitting authority, including the department, in administering and enforcing the operating permit program with respect to sources under its jurisdiction. Costs associated with the following activities are fee eligible as these activities relate to the operating permit program and to the sources permitted by a permitting authority, including, where applicable, sources subject to a general permit:
(i) Preapplication assistance and review of an application and proposed compliance plan for a permit, permit revision, or renewal;
(ii) Source inspections, testing, and other data-gathering activities necessary for the development of a permit, permit revision, or renewal;
(iii) Acting on an application for a permit, permit revision, or renewal, including the costs of developing an applicable requirement as part of the processing of a permit, permit revision, or renewal, preparing a draft permit and fact sheet, and preparing a final permit, but excluding the costs of developing BACT, LAER, BART, or RACT requirements for criteria and toxic air pollutants;
(iv) Notifying and soliciting, reviewing and responding to comment from the public and contiguous states and tribes, conducting public hearings regarding the issuance of a draft permit and other costs of providing information to the public regarding operating permits and the permit issuance process;
(v) Modeling necessary to establish permit limits or to determine compliance with permit limits;
(vi) Reviewing compliance certifications and emissions reports and conducting related compilation and reporting activities;
(vii) Conducting compliance inspections, complaint investigations, and other activities necessary to ensure that a source is complying with permit conditions;
(viii) Administrative enforcement activities and penalty assessment, excluding the costs of proceedings before the pollution control hearings board and all costs of judicial enforcement;
(ix) The share attributable to permitted sources of the development and maintenance of emissions inventories;
(x) The share attributable to permitted sources of ambient air quality monitoring and associated recording and reporting activities;
(xi) Training for permit administration and enforcement;
(xii) Fee determination, assessment, and collection, including the costs of necessary administrative dispute resolution and penalty collection;
(xiii) Required fiscal audits, periodic performance audits, and reporting activities;
(xiv) Tracking of time, revenues and expenditures, and accounting activities;
(xv) Administering the permit program including the costs of clerical support, supervision, and management;
(xvi) Provision of assistance to small businesses under the jurisdiction of the permitting authority as required under section 507 of the federal clean air act; and
(xvii) Other activities required by operating permit regulations issued by the United States environmental protection agency under the federal clean air act.
(b) Development and oversight costs are those incurred by the department in developing and administering the state operating permit program, and in overseeing the administration of the program by the delegated local permitting authorities. Costs associated with the following activities are fee eligible as these activities relate to the operating permit program:
(i) Review and determinations necessary for delegation of authority to administer and enforce a permit program to a local air authority under RCW 70A.15.2260(2) and 70A.15.6240;
(ii) Conducting fiscal audits and periodic performance audits of delegated local authorities, and other oversight functions required by the operating permit program;
(iii) Administrative enforcement actions taken by the department on behalf of a permitting authority, including those actions taken by the department under RCW 70A.15.6050, but excluding the costs of proceedings before the pollution control hearings board and all costs of judicial enforcement;
(iv) Determination and assessment with respect to each permitting authority of the fees covering its share of the costs of development and oversight;
(v) Training and assistance for permit program administration and oversight, including training and assistance regarding technical, administrative, and data management issues;
(vi) Development of generally applicable regulations or guidance regarding the permit program or its implementation or enforcement;
(vii) State codification of federal rules or standards for inclusion in operating permits;
(viii) Preparation of delegation package and other activities associated with submittal of the state permit program to the United States environmental protection agency for approval, including ongoing coordination activities;
(ix) General administration and coordination of the state permit program, related support activities, and other agency indirect costs, including necessary data management and quality assurance;
(x) Required fiscal audits and periodic performance audits of the department, and reporting activities;
(xi) Tracking of time, revenues and expenditures, and accounting activities;
(xii) Public education and outreach related to the operating permit program, including the maintenance of a permit register;
(xiii) The share attributable to permitted sources of compiling and maintaining emissions inventories;
(xiv) The share attributable to permitted sources of ambient air quality monitoring, related technical support, and associated recording activities;
(xv) The share attributable to permitted sources of modeling activities;
(xvi) Provision of assistance to small business as required under section 507 of the federal clean air act as it exists on July 25, 1993, or its later enactment as adopted by reference by the director by rule;
(xvii) Provision of services by the department of revenue and the office of the state attorney general and other state agencies in support of permit program administration;
(xviii) A one-time revision to the state implementation plan to make those administrative changes necessary to ensure coordination of the state implementation plan and the operating permit program; and
(xix) Other activities required by operating permit regulations issued by the United States environmental protection agency under the federal clean air act.
(3) The responsibility for operating permit fee determination, assessment, and collection is to be shared by the department and delegated local air authorities as follows:
(a) Each permitting authority, including the department, acting in its capacity as a permitting authority, shall develop a fee schedule and mechanism for collecting fees from the permit program sources under its jurisdiction; the fees collected by each authority shall be sufficient to cover its costs of permit administration and its share of the department's costs of development and oversight. Each delegated local authority shall remit to the department its share of the department's development and oversight costs.
(b) Only those local air authorities to whom the department has delegated the authority to administer the program pursuant to RCW 70A.15.2260(2) (b) and (c) and 70A.15.6240 shall have the authority to administer and collect operating permit fees. The department shall retain the authority to administer and collect such fees with respect to the sources within the jurisdiction of a local air authority until the effective date of program delegation to that air authority.
(c) The department shall allocate its development and oversight costs among all permitting authorities, including the department, in proportion to the number of permit program sources under the jurisdiction of each authority, except that extraordinary costs or other costs readily attributable to a specific permitting authority may be assessed that authority. For purposes of this subsection, all sources covered by a single general permit shall be treated as one source.
(4) The department and each delegated local air authority shall adopt by rule a general permit fee schedule for sources under their respective jurisdictions after such time as the department adopts provisions for general permit issuance. Within ninety days of the time that the department adopts a general permit fee schedule, the department shall report to the relevant standing committees of the legislature regarding the general permit fee schedules adopted by the department and by the delegated local air authorities. The permit administration costs of each general permit shall be allocated equitably among only those sources subject to that general permit. The share of development and oversight costs attributable to each general permit shall be determined pursuant to subsection (3)(c) of this section.
(5) The fee schedule developed by the department shall allocate among the sources for whom the department acts as a permitting authority, other than sources subject to a general permit, those portions of the department's permit administration costs and the department's share of the development and oversight costs which the department does not plan to recover under its general permit fee schedule or schedules as follows:
(a) The department shall allocate its permit administration costs and its share of the development and oversight costs not recovered through general permit fees according to a three-tiered model based upon:
(i) The number of permit program sources under its jurisdiction;
(ii) The complexity of permit program sources under its jurisdiction; and
(iii) The size of permit program sources under its jurisdiction, as measured by the quantity of each regulated pollutant emitted by the source.
(b) Each of the three tiers shall be equally weighted.
(c) The department may, in addition, allocate activities-based costs readily attributable to a specific source to that source under RCW 70A.15.2210(1) and 70A.15.2230(7).
The quantity of each regulated pollutant emitted by a source shall be determined based on the annual emissions during the most recent calendar year for which data is available.
(6) The department shall, after opportunity for public review and comment, adopt rules that establish a process for development and review of its operating permit program fee schedule, a methodology for tracking program revenues and expenditures, and, for both the department and the delegated local air authorities, a system of fiscal audits, reports, and periodic performance audits.
(a) The fee schedule development and review process shall include the following:
(i) The department shall conduct a biennial workload analysis. The department shall provide the opportunity for public review of and comment on the workload analysis. The department shall review and update its workload analysis during each biennial budget cycle, taking into account information gathered by tracking previous revenues, time, and expenditures and other information obtained through fiscal audits and performance audits.
(ii) The department shall prepare a biennial budget based upon the resource requirements identified in the workload analysis for that biennium. In preparing the budget, the department shall take into account the projected operating permit account balance at the start of the biennium. The department shall provide the opportunity for public review of and comment on the proposed budget. The department shall review and update its budget each biennium.
(iii) The department shall develop a fee schedule allocating the department's permit administration costs and its share of the development and oversight costs among the department's permit program sources using the methodology described in subsection (5) of this section. The department shall provide the opportunity for public review of and comment on the allocation methodology and fee schedule. The department shall provide procedures for administrative resolution of disputes regarding the source data on which allocation determinations are based; these procedures shall be designed such that resolution occurs prior to the completion of the allocation process. The department shall review and update its fee schedule annually.
(b) The methodology for tracking revenues and expenditures shall include the following:
(i) The department shall develop a system for tracking revenues and expenditures that provides the maximum practicable information. At a minimum, revenues from fees collected under the operating permit program shall be tracked on a source-specific basis and time and expenditures required to administer the program shall be tracked on the basis of source categories and functional categories. Each general permit will be treated as a separate source category for tracking and accounting purposes.
(ii) The department shall use the information obtained from tracking revenues, time, and expenditures to modify the workload analysis required in subsection (6)(a) of this section.
(iii) The information obtained from tracking revenues, time, and expenditures shall not provide a basis for challenge to the amount of an individual source's fee.
(c) The system of fiscal audits, reports, and periodic performance audits shall include the following:
(i) The department and the delegated local air authorities shall periodically report information about the air operating permit program on the department's website.
(ii) The department shall arrange for fiscal audits and routine performance audits and for periodic intensive performance audits of each permitting authority and of the department.
(7) Each local air authority requesting delegation shall, after opportunity for public review and comment, publish regulations which establish a process for development and review of its operating permit program fee schedule, and a methodology for tracking its revenues and expenditures. These regulations shall be submitted to the department for review and approval as part of the local authority's delegation request.
(8) As used in this section and in RCW 70A.15.2260(14), "regulated pollutant" shall have the same meaning as defined in section 502(b) of the federal clean air act as it exists on July 25, 1993, or its later enactment as adopted by reference by the director by rule.
(9) Fee structures as authorized under this section shall remain in effect until such time as the legislature authorizes an alternative structure following receipt of the report required by this subsection.
[ 2020 c 20 § 1095; 2014 c 76 § 5; 1998 c 245 § 129; 1993 c 252 § 6. Formerly RCW 70.94.162.]