Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
224.10-100,
224.10-230,
224.20-050,
224.20-100,
224.20-130,
40 C.F.R. Part 70,
42 U.S.C.
7401-7671q,
et seq.
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
224.10-100 requires the Environmental and
Public Protection Cabinet to prescribe administrative regulations for the
prevention, abatement, and control of air pollution. This administrative
regulation provides for the assessment of fees necessary to fund the state
permit program as defined in Section 1(8) of this administrative
regulation.
Section 1. Definitions. As
used in this administrative regulation, terms defined in this section shall
have the following meanings. All terms not defined in this section shall have
the meaning given them in
401 KAR
50:010.
(1) "Act,"
"Clean Air Act," or "CAA" means
42 USC
7401 through
7671q.
(2) "Actual emissions" means the amount of a
pollutant actually emitted in the calendar year immediately preceding the
fiscal year during which an emissions fee is assessed, as recorded by the
Kentucky Emissions Inventory System (KyEIS).
(3) "Designated representative" means a
responsible person authorized by the owners and operators of an affected source
and of all affected units at the source, as evidenced by a certificate of
representation submitted to the U.S. EPA pursuant to
40
CFR 72.20(b), to represent
and legally bind each owner and operator, as a matter of federal law, in all
matters pertaining to the acid rain program.
(4) "Emissions fee" means the amount of money
assessed by the cabinet to fund the cost of administering the operating permit
program.
(5) "Fiscal year" means
the period beginning July 1 and ending the following June 30.
(6) "Hazardous air pollutant" means a
pollutant listed in
401
KAR 63:060.
(7) "Kentucky emissions inventory system" or
"KyEIS" means a database used by the cabinet to record, among other
information, emissions of air pollutants from Kentucky sources.
(8) "Permit program" means the issuance and
enforcement of permits for all sources subject to this administrative
regulation.
(a) Permit program includes:
1. The review of permit applications and
exemptions;
2. The issuance of
permits to air pollution sources;
3. Inspections of air pollution
sources;
4. Enforcement activities
other than prosecutions in a court of law or administrative hearings;
5. Air quality and emissions monitoring,
including quality assurance;
6. The
preparation of generally applicable reports, plans, administrative regulations,
and statutes;
7. Responses to
inquiries;
8. Preparing inventories
and tracking emissions;
9. The
preparation and maintenance of records, including computerized data
bases;
10. Air quality modeling,
analyses, and demonstrations; and
11. Providing direct and indirect support
through a small business technical assistance program.
(b) Permit program does not include:
1. The control of asbestos emissions from
renovations or demolitions, or any activities required under the Asbestos
Hazard Emergency Response Act (AHERA);
2. The issuance of permits or the enforcement
of permit conditions required only by
401 KAR
63:020,
401 KAR
63:021, or 401 KAR 63:022, or any other applicable
requirement, as defined in
401 KAR
52:001, that is not required to be federally
enforceable; or
3. The control and
enforcement of any activity not required to be permitted, and the enforcement
of applicable requirements at any source not required to have a
permit.
(9)
"Responsible official" means one (1) of the following:
(a) For a corporation: a president,
secretary, treasurer, or vice-president of the corporation in charge of a
principal business function, or other person who performs similar policy or
decision-making functions for the corporation, or a duly authorized
representative of that person if the representative is responsible for the
overall operation of one (1) or more manufacturing, production, or operating
facilities applying for or subject to a permit and either:
1. The facilities employ more than 250
persons or have gross annual sales or expenditures exceeding $25 million (in
second quarter 1980 dollars); or
2.
The delegation of authority to the representative is approved in advance by the
cabinet;
(b) For a
partnership or sole proprietorship, a general partner or the proprietor,
respectively;
(c) For a
municipality, state, federal, or other public agency, a principal executive
officer or ranking elected official. For this administrative regulation, the
principal executive officer of a federal agency includes the chief executive
officer having responsibility for the overall operation of a principal
geographic unit of the agency; or
(d) For affected sources, if requested by the
source, the designated representative.
(10) "Subject emissions" means actual
emissions, as recorded in the Kentucky emissions inventory system, of sulfur
dioxide, oxides of nitrogen, PM10, lead, volatile
organic compounds, hazardous air pollutants listed in 401 KAR 57:061 for which
a standard applies, or a pollutant subject to a standard contained in Section
111 of the Act, from an air pollution source subject to this administrative
regulation, except that actual emissions in excess of 4,000 tons of a single
pollutant from a source shall not be subject emissions. Pollutants subject only
to 42 USC 7412r (Section 112(r) of the Act), and pollutants that are class I or
class II substances under
42
USC 7671 through
7671q
and which are not otherwise regulated shall not be subject
emissions.
Section 2.
Applicability.
(1) This administrative
regulation shall apply to all major sources as defined in
401 KAR
52:001, and to the following minor sources unless a
final rule exempting the minor source category from the permitting requirements
of 42 USC 7661 through
7661f
(Title V of the Act) has been published by the U.S. EPA:
(a) Minor sources subject to a standard,
federal regulation, or state administrative regulation promulgated pursuant to
42 USC
7411 or
7412
(Section 111 or 112 of the Act);
(b) Minor sources required to have a permit
pursuant to
42 USC
7470 through
7515 (Part
C or D of Title I of the Act); and
(c) Any other minor stationary source in a
category required by the U.S. EPA to obtain a permit pursuant to
42
USC 7661 through
7661f
(Title V of the Act).
(2) This administrative regulation shall not
apply to:
(a) Mobile sources;
(b) Sources located in an air pollution
control district granted concurrent jurisdiction by the cabinet under
KRS
224.20-130;
(c) An electric utility unit exempted by
42 USC
7651g, unless a substitute unit has been
approved by the administrator of the U.S. EPA pursuant to
42 USC
7651c; or
(d) A substitute unit approved by the U.S.
EPA pursuant to
42 USC
7651c, if the cabinet has been notified in
writing at least thirty (30) days prior to the fee assessment established in
Section 3(1) of this administrative regulation.
Section 3. Fee Assessment.
(1) On or about July 1, 1994, and on or about
July 1 of each succeeding year, the division for air quality shall calculate
and assess an annual emissions fee based on subject emissions for each air
pollution source subject to this administrative regulation and shall provide
written notification to the source of the amount of fee due. If a pollutant
qualifies as more than one (1) of the subject emissions listed in Section 1(10)
of this administrative regulation, it shall be assessed as a single subject
emission.
(2) Determining subject
emissions. At least four (4) months but not more than twelve (12) months prior
to assessing the emissions fee, the cabinet shall provide each source subject
to the emissions fee a written copy of the KyEIS containing the most recent
information appropriate to that source. Within thirty (30) days of the date
this information is mailed, each source shall provide the cabinet with all
information necessary to determine its subject emissions. The information shall
be accompanied by a statement signed by a responsible official or by a
designated representative, as appropriate, certifying the accuracy of the
information. Each day past the deadline for submitting information that the
source fails to submit the information shall be a separate violation of this
administrative regulation. If no response is received by the deadline, the
cabinet shall estimate the subject emissions for the source based on previous
actual emissions and on other information considered pertinent by the
cabinet.
(3) Fee assessment. At
least sixty (60) days prior to assessing the fee, the cabinet shall determine
the subject emissions for each source, based on the information provided by the
source and on other information available to the cabinet. The cabinet shall
notify the source of its determination for subject emissions at least
forty-five (45) days prior to assessing the fee. Assessment of the subject
emissions shall be a final determination by the cabinet. If the source fails to
notify the cabinet of an error in the determination of subject emissions within
thirty (30) days after the date the determination is mailed by the cabinet, the
source shall be assessed a fee based on the cabinet's determination. If the
source notifies the cabinet in a timely manner that there is an error in the
determination of its subject emissions, and the cabinet disagrees with the
assessment by the source, the cabinet shall notify the source, in writing,
specifying the reasons for rejecting the error notification.
(4) Computation of emissions fee. The cabinet
shall compute the emissions fee as follows:
(a) For fiscal year 1995 the emissions fee
shall be $5,505,200, and for fiscal year 1996 the emissions fee shall be
$6,594,700. The cost per ton of the subject emissions shall be the emissions
fee, minus $150 times the number of sources subject to subsection (5)(b) of
this section, divided by the total number of tons of subject emissions from all
sources subject to this administrative regulation which emit twenty-five (25)
tons or more of subject emissions.
(b) Except as provided in paragraph (c) of
this subsection, the emissions fee for each succeeding fiscal year shall be
$6,594,700 adjusted annually using the method provided in
40 CFR
70.9(b)(2)(iv). The cost per
ton of subject emissions shall be determined as prescribed in paragraph (a) of
this subsection.
(c)
Notwithstanding the provisions of paragraph (b) of this subsection the
emissions fee for a fiscal year may be increased by an amount greater than that
calculated pursuant to
40 CFR
70.9(b)(2)(iv), may be left
unchanged from the previous fiscal year, or may be decreased from the previous
fiscal year if the cabinet determines after public hearing and after approval
by the U.S. EPA that the increase is necessary, or the same or lesser amount is
adequate, to cover all reasonable costs of administering the permit
program.
(5) Payment of
fees.
(a) A source subject to this
administrative regulation which emitted twenty-five (25) tons or more of
subject emissions shall pay a portion of the emissions fee which shall be
determined by multiplying the subject emissions from the source, expressed in
tons to the nearest ton, by the cost per ton of subject emissions, and
subtracting from that amount any portion of unexpended emissions fees which are
carried forward from the previous year in an amount proportional to that paid
by the source during the previous year. The source shall pay the fee by check
or money order, made payable to the Kentucky State Treasurer, within sixty (60)
days after the date on which the fee invoice is mailed.
(b) A source subject to this administrative
regulation which emitted less than twenty-five (25) tons of subject emissions
shall pay an annual fee of $150. The source shall pay the fee by check or money
order, made payable to the Kentucky State Treasurer, within sixty (60) days
after the date on which the fee invoice is mailed.
(c) The fee invoice shall be mailed to the
permit holder of record as of the date the invoice is mailed, and the permit
holder shall be responsible for payment.
(6) Enforcement.
(a) Each day after the deadline for payment
of the source's portion of the emissions fee during which the source fails to
pay the fee shall be a separate violation of this administrative
regulation.
(b) Failure to pay the
fee within ninety (90) days after the date on which the cabinet notifies the
source of the amount of fee due shall result in:
1. An increase in the fee of an additional
fifty (50) percent of the original amount due, plus interest on the fee amount
computed in accordance with section 6621(a)(2) of the Internal Revenue Code of
1986 (relating to computation of interest on underpayment of federal taxes);
and
2. Suspension of the source's
permit until the fee is paid or until the cabinet has approved a schedule of
payment.
Section
4. Use of Fees. All fees collected pursuant to this administrative
regulation shall be deposited in a trust and agency account and shall be used
solely for funding the permit program.
STATUTORY AUTHORITY:
KRS
224.10-100,
224.10-230,
224.20-050,
224.20-100,
224.20-130,
40 C.F.R. Part 70,
42 U.S.C.
7401-7671q,
et seq.