HB-4915, As Passed Senate, September 28, 2011

SUBSTITUTE FOR

HOUSE BILL NO. 4915

     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, 2015, 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 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 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 of $4,485.00 and an emissions charge as specified

in subdivision (e) or (f). The facility charge shall be $4,485.00.

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

shall be the sum of a facility charge of $1,795.00 and an emissions

charge as specified in subdivision (e) or (f). The facility charge

shall be $1,795.00.

     (c) For category III facilities, the annual air quality fee

shall be $250.00.

     (d) For municipal electric generating facilities that are

category I facilities and that emit more than 450 730 tons but less

than 18,000 12,000 tons of fee-subject air pollutants, the annual

air quality fee shall be the following amount, based on the number

of tons of fee-subject air pollutants emitted:

     (i) More than 450 730 tons but less than 4,000 5,250 tons,

$24,816.00 $37,000.00.

     (ii) At least 4,000 5,250 tons but not more less than 5,300

12,000 tons, $127,000.00. $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 that are electric providers and that are not covered by

subdivision (d) and for category II facilities that are electric

providers shall equal the emission charge rate of $45.25 ,

multiplied by the actual tons of fee-subject air pollutants

emitted. The emission charge rate for fee-subject air pollutants

shall be $47.95. 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 shall be

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 5,250 tons.

     (ii) 1,000 1,250 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 5,250 tons.

     (f) The emissions charge for category I or category II

facilities that are not electric providers shall be calculated in

the same manner as provided in subdivision (e). However, the actual

tons of fee-subject air pollutants emitted shall be considered to

be the sum of all fee-subject air pollutants emitted at a 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.

(3) (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 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), (5), 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. However, to combine fee assessments, the

department may adjust the billing date and due date under this

subsection for category III dry cleaning facilities that are also

subject to the licensing or certification requirements of section

13305 of the public health code, 1978 PA 368, MCL 333.13305, and

section 5i of the fire prevention code, 1941 PA 207, MCL 29.5i. The

department shall deposit all fees collected under this section to

the credit of the fund.

(4) (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), (3), 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. However, to combine fee assessments, the

department may waive the penalty under this subsection for dry

cleaning facilities described in subsection (3).

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

desires to To challenge its assessed fee, the owner or operator of

a fee-subject facility 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) (3). A 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). (3). 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.

(6) (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.

(7) (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.

(8) (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 shall 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.

     (c) All of the following information for the renewable

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 shall 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.

(9) (10) The report under subsection (9) (8) 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.

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

collection of the fees imposed under this section.

(11) (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.

     (12) As used in this section, "electric provider" means that

term as defined in section 5 of the clean, renewable, and efficient

energy act, 2008 PA 295, MCL 460.1005.