If you are one of the nearly 560 Title V facilities in Pennsylvania, DEP has proposed a 50 percent increase in your annual air emissions fees.  (See 43 PA Bulletin 677, February 2, 2013.)  Under the proposal, you will pay $85 per ton (up from $57.50) for up to 4,000 tons of each regulated pollutant beginning with the fees due by September 1, 2014 (2013 calendar year emissions).  For a facility that is paying its fees based upon, say 1,000 tons of emissions, this will be a $27,500 increase.  Regulated pollutants subject to the fees include: Lead (Pb), Nitrogen Dioxide (NO2), Nitrogen Oxide (NOx), volatile organic compounds (VOCs), Particulate Matter (PM2.5 and PM10), Sulfur Dioxide (SO2), Hazardous Air Pollutants (HAPs), Asbestos, Benzene, Beryllium, Inorganic Arsenic, Mercury, Radionuclides, Radon-222, and Vinyl Chloride. (Note:  Where a VOC is also a HAP, you only pay once.)

If your facility is classified as a Clean Air Act Title V major source of regulated pollutants, you must report your regulated pollutants to the Pennsylvania Department of Environmental Protection ("PADEP”) annually and pay an emissions fee per ton up to 4,000 tons for each.  Federal and Pennsylvania air laws combine to mandate the collection of the fee and require that the fee be sufficient to fully fund the PADEP Title V program, Small Business Stationary Source Technical and Environmental Compliance Assistance Program, the Small Business Compliance Advisory Committee, and the Office of Small Business Ombudsman.  When initially instituted in 1994, PADEP promulgated a rule setting the base fee at $37 per ton and providing for automatic annual increases based upon the Consumer Price Index ("CPI"); under this methodology, the fee for 2012 is $57.50.  According to PADEP, the problem is that certain emissions sources have been or are planned for elimination (e.g., older power plants) and investment return rates on existing fund reserves have decreased, and that these factors have resulted in a projected funding gap in 2014, justifying a revision to the base fee.  After a programmatic review, PADEP is proposing, with Air Quality Technical Advisory Committee concurrence, an increase in the base fee from $37 per ton to $85 per ton for up to 4,000 tons of each regulated pollutant beginning with the fees due by September 1, 2014 (2013 calendar year emissions).  The annual CPI adjustment will continue. 

The regulation is set out at 25 PA Code Chapter 127, Subchapter I, §§127.701 and .705.

PADEP is convening three public meetings on the proposal: March 5 in Pittsburgh; March 6 in Norristown; and, March 7 in Harrisburg.  To reserve a 10 minute time slot to present testimony at a public hearing, call the Environmental Quality Board at least one week prior to the hearing date.  In addition, if you want to submit written comments on this proposed increase, you can do so electronically via RegComments@pa.gov through April 8, 2013.

Because the fee is statutorily mandated, it may be difficult to advance arguments that would cause PADEP to alter its proposal.  Further, the level of effort required to reasonably analyze and challenge PADEP’s conclusions may be so resource intensive as to make a challenge impractical for any one company.  However, we recommend that each Title V facility consider taking this opportunity to review its emissions inventory so that the emissions amounts reported and accounted for are accurate. (Over-reporting could result in excess fees, and under reporting in unintentional triggering of New Source Review after a future modification.)  In addition, the rulemaking provides an excellent opportunity to review your entire Title V application and permit to ensure that it is crafted to provide you with compliance documentation and assurance, maximum operational flexibility, and permit shield protection.

If you have questions regarding your Title V permit, emissions inventory reporting, Title V emissions fees, or other air regulatory matters, please contact:  Rick Friedman at 717.237.5469 (rfriedman@mwn.com), or Scott Gould at 717.237.5304 ( sgould@mwn.com).

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