HB-5220, As Passed Senate, December 17, 2009

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 5220

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending section 5522 (MCL 324.5522), as amended by 2007 PA 75.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 5522. (1) Until October 1, 2011, the owner or operator of

each fee-subject facility shall pay air quality fees as required

and calculated under this section. The department may levy and

collect an annual air quality fee from the owner or operator of

each fee-subject facility in this state. ~~The~~ It is the intent of

the legislature ~~intends~~ that the fees required under this section

meet the minimum requirements of the clean air act and that this

expressly stated fee system serve as a limitation on the amount of

fees imposed under this part on the owners or operators of fee-

subject facilities in this state.

(2) The annual air quality fee shall be calculated for each

fee-subject facility, ~~according to~~ using the following procedure:

(a) Except as provided in subdivision (d), for category I

facilities, the annual air quality fee shall be the sum of a

facility charge and an emissions charge as specified in subdivision

(e). The facility charge ~~shall be~~ is $4,485.00.

(b) For category II facilities, the annual air quality fee

shall be the sum of a facility charge and an emissions charge as

specified in subdivision (e). The facility charge ~~shall be~~ is

$1,795.00.

~~shall be~~ is $250.00.

(d) For municipal electric generating facilities that are

category I facilities and that emit more than 450 tons but less

than 18,000 tons of fee-subject air pollutants, the annual air

quality fee ~~shall be~~ is the following amount, based on the number

of tons of fee-subject air pollutants emitted:

(i) More than 450 tons but less than 4,000 tons, $24,816.00.

(ii) At least 4,000 tons but not more than 5,300 tons,

$24,816.00 plus $45.25 per ton of fee-subject air pollutant in

excess of 4,000 tons.

(iii) More than 5,300 tons but not more than 12,000 tons,

$85,045.00.

(iv) More than 12,000 tons but less than 18,000 tons,

$159,459.00.

(e) The emissions charge for category I and category II

facilities ~~shall equal~~ equals the emission charge rate of $45.25,

multiplied by the actual tons of fee-subject air pollutants

emitted. A pollutant that qualifies as a fee-subject air pollutant

under more than 1 class shall be charged only once. The actual tons

of fee-subject air pollutants emitted is considered to be the sum

of all fee-subject air pollutants emitted at the fee-subject

facility for the calendar year 2 years preceding the year of

billing, but not more than the lesser of the following:

(i) 4,000 tons.

(ii) 1,000 tons per pollutant, if the sum of all fee-subject

air pollutants except carbon monoxide emitted at the fee-subject

facility is less than 4,000 tons.

(3) The auditor general shall conduct a biennial audit of the

federally mandated operating permit program required in title V.

The audit shall include the auditor general's recommendation

regarding the sufficiency of the fees required under subsection (2)

to meet the minimum requirements of the clean air act.

(4) After January 1, but before January 15 of each year, the

department shall notify the owner or operator of each fee-subject

facility of its assessed annual air quality fee. Payment of the air

quality fee is due within 90 calendar days of the mailing date of

the ~~air quality~~ fee notification. If an assessed fee is challenged

under subsection (6), payment is due within 90 calendar days of the

mailing date of the air quality fee notification or within 30 days

of receipt of a revised fee or statement supporting the original

fee, whichever is later. The department shall deposit all fees

collected under this section to the credit of the fund.

(5) If the owner or operator of a fee-subject facility fails

to submit the amount due within the time period specified in

subsection (4), the department shall assess the owner or operator a

penalty of 5% of the amount of the unpaid fee for each month that

the payment is overdue up to a maximum penalty of 25% of the total

fee owed.

(6) If the owner or operator of a fee-subject facility desires

to challenge its assessed fee, the owner or operator shall submit

the challenge in writing to the department. The department shall

not process the challenge unless it is received by the department

within 45 calendar days of the mailing date of the air quality fee

notification described in subsection (4). A The challenge shall

identify the facility and state the grounds upon which the

challenge is based. Within 30 calendar days of receipt of the

challenge, the department shall determine the validity of the

challenge and provide the owner with notification of a revised fee

or a statement setting forth the reason or reasons why the fee was

not revised. Payment of the challenged or revised fee is due within

the time frame described in subsection (4). If the owner or

operator of a facility desires to further challenge its assessed

fee, the owner or operator of the facility has an opportunity for a

contested case hearing as provided for under the administrative

procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

(7) If requested by the department, by March 15 of each year,

or within 45 days of a request by the department, whichever is

later, the owner or operator of each fee-subject facility shall

submit information regarding the facility's previous year's

emissions to the department. The information shall be sufficient

for the department to calculate the facility's emissions for that

year and meet the requirements of 40 CFR 51.320 to 51.327.

(8) By July 1 of each year, the department shall provide the

owner or operator of each fee-subject facility required to pay an

emission charge pursuant to this section with a copy of the

department's calculation of the facility emissions for the previous

year. Within 60 days of this notification, the owner or operator of

the facility may provide corrections to the department. The

department shall make a final determination of the emissions by

December 15 of that year. If the owner or operator disagrees with

the determination of the department, the owner or operator may

request a contested case hearing as provided for under the

administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to

24.328.

(9) By March 1 annually, the department shall prepare and

submit to the governor, the legislature, the chairpersons of the

standing committees of the senate and house of representatives with

primary responsibility for environmental protection issues related

to air quality, and the chairpersons of the subcommittees of the

senate and house appropriations committees with primary

responsibility for appropriations to the department a report that

details the department's activities of the previous fiscal year

funded by the fund. This report shall include, at a minimum, all of

the following as it relates to the department:

(a) The number of full-time equated positions performing title

V and non-title V air quality enforcement, compliance, or

permitting activities.

(b) All of the following information related to the permit to

install program authorized under section 5505:

(i) The number of permit to install applications received by

the department.

(ii) The number of permit to install applications for which a

final action was taken by the department. The number of final

actions should be reported as the number of applications approved,

the number of applications denied, and the number of applications

withdrawn by the applicant.

(iii) The number of permits to install approved that were

required to complete public participation under section 5511(3)

before final action and the number of permits to install approved

that were not required to complete public participation under

section 5511(3) prior to final action.

(iv) The average number of final permit actions per permit to

install reviewer full-time equivalent position.

(v) The percentage and number of permit to install

applications that were reviewed for administrative completeness

within 10 days of receipt by the department.

(vi) The percentage and number of permit to install

applications that were reviewed for technical completeness within

30 days of receipt of an administratively complete application by

the department.

(vii) The percentage and number of permit to install

applications submitted to the department that were administratively

complete as received.

(viii) The percentage and number of permit to install

applications for which a final action was taken by the department

within 60 days of receipt of a technically complete application for

those not required to complete public participation under section

5511(3) prior to final action, or within 120 days of receipt of a

technically complete application for those which are required to

complete public participation under section 5511(3) prior to final

action.

operating permit program authorized under section 5506:

(i) The number of renewable operating permit applications

received by the department.

(ii) The number of renewable operating permit applications for

which a final action was taken by the department. The number of

final actions should be reported as the number of applications

approved, the number of applications denied, and the number of

applications withdrawn by the applicant.

(iii) The percentage and number of permit applications initially

processed within the required time.

(iv) The percentage and number of permit renewals and

modifications processed within the required time.

(v) The number of permit applications reopened by the

department.

(vi) The number of general permits issued by the department.

(d) The number of letters of violation sent.

(e) The amount of penalties collected from all consent orders

and judgments.

(f) For each enforcement action that includes payment of a

penalty, a description of what corrective actions were required by

the enforcement action.

(g) The number of inspections done on sources required to

obtain a permit under section 5506 and the number of inspections of

other sources.

(h) The number of air pollution complaints received,

investigated, not resolved, and resolved by the department.

(i) The number of contested case hearings and civil actions

initiated and completed, and the number of voluntary consent

orders, administrative penalty orders, and emergency orders entered

or issued, for sources required to obtain a permit under section

5506.

(j) The amount of revenue in the fund at the end of the fiscal

year.

(10) The report under subsection (9) shall also include the

amount of revenue for programs under this part received during the

prior fiscal year from fees, from federal funds, and from general

fund appropriations. Each of these amounts shall be expressed as a

dollar amount and as a percent of the total annual cost of programs

under this part.

(11) By August 1, 2010, the department shall prepare and

submit to the governor, the legislature, the chairpersons of the

standing committees of the senate and house of representatives with

primary responsibility for environmental protection issues related

to air quality, and the chairpersons of the subcommittees of the

senate and house appropriations committees with primary

responsibility for appropriations to the department a report that

benchmarks all information identified in subsection (8)(c),

including the average time taken to process permits, with that of

the United States environmental protection agency region 5 states.

The report may contain benchmark information from additional

states.

(12) By August 1, 2010, the department shall complete a

reengineering process evaluation for the activities funded by the

fund.

(13) ~~(11)~~ The attorney general may bring an action for the

collection of the fees imposed under this section.

(14) ~~(12)~~ This section does not apply if the administrator of

the United States environmental protection agency determines that

the department is not adequately administering or enforcing the

renewable operating permit program and the administrator

promulgates and administers a renewable operating permit program

for this state.

(15) In making a determination on an application for a permit

to install an electric generating facility, the department shall

not review or consider any of the following:

(a) This state's needs for electricity.

(b) Alternative methods for electric generation.

facilities.

Enacting section 1. This amendatory act does not take effect

unless all of the following bills of the 95th Legislature are

enacted into law: