Subchapter VIII. Clean Air Act Title V Operating Permit Program
§ 6095. Applicability.
This subchapter shall apply to all sources required to obtain a Title V Operating Permit pursuant to the federal Clean Air
Act Amendments of 1990. Such sources shall include, but not be limited to, the following:
(1) Sulfuric acid plants; municipal incinerators; fossil-fuel burners; petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels; petroleum refineries; sulfur recovery plants; chemical process plants;
(2) For pollutants other than radionuclides, any stationary source or group of stationary sources located within a contiguous
area and under common control or common ownership consistent with the requirements of 40 C.F.R. Part 70, that emits or has
the potential to emit, in the aggregate, 10 tons per year (tpy) or more of any hazardous air pollutant which has been listed
pursuant to Title I, § 112(b) of the Clean Air Act Amendments of 1990, Public Law 101 -- 549, 25 tpy or more of any combination
of such hazardous air pollutants, or such lesser quantity as the Department may establish by regulation;
(3) A source that directly emits or has the potential to emit, 100 tpy or more of any air pollutant, including any major source
of fugitive emissions of any such pollutant, as the Department may establish by regulation;
(4) For ozone nonattainment areas, sources with the potential to emit 100 tpy or more of volatile organic compounds or oxides
of nitrogen in areas classified as "marginal" or "moderate," 50 tpy or more in areas classified as "serious," 25 tpy or more
in areas classified as "severe," and sources subject to the requirements for preconstruction review; except that the references
in this paragraph to 100, 50, and 25 tpy of nitrogen oxides shall not apply with respect to any source for which the Department
has made a finding, pursuant to regulations, that requirements under this section do not apply;
(5) For areas within the northeast transport region, sources with the potential to emit 50 tpy or more of volatile organic
compounds; or
(6) Any other sources designated by the Department or mandated for designation by the United States Environmental Protection
Agency.
69 Del. Laws, c. 121, § 1.;
§ 6096. Title V account.
The Secretary shall establish a separate account entitled the "Clean Air Act Title V Operating Permit Program Account," hereinafter
the "Account." All fees collected under this subchapter shall be deposited into this account and utilized solely to cover
all direct and indirect costs required to support the Title V Operating Permit Program, hereinafter "Program." Any civil
or administrative penalties or costs recovered as a result of a violation of a Title V permit shall be used to further the
goals and purposes of the Department to promote clean air for the citizens of Delaware.
69 Del. Laws, c. 121, § 1.;
§ 6097. Fees.
(a) The Department shall collect an annual fee from sources that are required to obtain a Title V Operating Permit pursuant
to the Title V Program and from sources who voluntarily limit their potential to emit to below Title V applicability thresholds
as set forth in § 6095 of this title (i.e., a synthetic minor facility). The annual fees shall be utilized solely to pay for
all direct and indirect costs required to develop, administer and implement the Program.
(b) The fee schedule must result in the collection and retention of revenues sufficient to cover the permit program costs.
These costs include, but are not limited to, the costs of the following activities, as they relate to the operating permit
program for stationary sources: preparing generally applicable regulations or guidance documents regarding the permit program
}or its implementation or enforcement; reviewing and acting on any application for a permit, permit revision or permit renewal,
including the development of an applicable requirement as part of the processing of a permit or permit revision or renewal;
general administrative costs of implementing the permit program, including the supporting and tracking of data; implementing
and enforcing the terms of any Title V Operating Permit (not including any court costs or other costs associated with an enforcement
action), including adequate resources to determine which sources are subject to the program; emissions and ambient monitoring;
modeling; preparing inventories and tracking emissions; and supporting the ombudsman established pursuant to the Small Business
Stationary Source Technical and Environmental Compliance Program ("SBTCP") to assist sources covered by the SBTCP in determining
and meeting their obligations under the Title V Operating Permit Program.
(c) The Department shall collect annual fees, payable annually or in quarterly installments, during calendar years 2009, 2010
and 2011, from each source that is required to pay the annual fee as set forth in subsection (a) of this section. The annual
fee for each subject source will be determined by the sum of 2 component fees: a base fee and a user fee. For sources that
are identified in the 2005 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants or sources that have
applied for a Title V Operating Permit or synthetic minor facility permit by December 31, 2008, the base fee and the user
fee shall be calculated as set forth in subsections (d) and (e) of this section. For all other sources the base fee and user
fee shall be calculated as set forth in subsection (f) of this section.
(d) The base fee relates to services that are common to all sources subject to the program. These services include activities
such as permit issuance and renewals; stationary source regulation development; ambient monitoring; emission inventory; control
strategy development; and development, administration and implementation of 2 additional programs: the Small Business Stationary
Source Technical and Environmental Compliance Program and a portion of the accidental release prevention program.
In calendar year 2009 the Department will place each subject source into 1 of the following 11 categories:
Category A Greater than 6,000 hours $207,842
Category B from 5,001 to 6,000 hours $ 81,255
Category C from 4,001 to 5,000 hours $ 70,136
Category D from 3,001 to 4,000 hours $ 60,728
Category E from 2,001 to 3,000 hours $ 42,766
Category F from 1,501 to 2,000 hours $ 31,647
Category G from 1,001 to 1,500 hours $ 21,383
Category H from 667 to 1,000 hours $ 13,685
Category I from 334 to 666 hours $ 6,843
Category J from 0 to 333 hours $ 4,277
Category K New sources that have applied for
a permit by December 31, 2008 $ 5,132
In calendar years 2010 and 2011 the Department will place each subject source into 1 of the following 11 categories:
Category A Greater than 6,000 hours ☺$243,000
Category B from 5,001 to 6,000 hours ☺$ 95,000
Category C from 4,001 to 5,000 hours ☺$ 82,000
Category D from 3,001 to 4,000 hours ☺$ 71,000
Category E from 2,001 to 3,000 hours ☺$ 50,000
Category F from 1,501 to 2,000 hours ☺$ 37,000
Category G from 1,001 to 1,500 hours ☺$ 25,000
Category H from 667 to 1,000 hours ☺$ 16,000
Category I from 334 to 666 hours ☺$ 8,000
Category J from 0 to 333 hours ☺$ 5,000
Category K New sources that have applied for a per-
mit by December 31, 2008 ☺$ 6,000
Determination shall be based upon the most recent 5 year's data of engineering, compliance, and enforcement hours expended
for each facility. The Department will continue to track the actual hours spent processing Title V permits and performing
other related services under the Title V program. This information may be used in the evaluations of the Title V program associated
with the expiration of this statute on December 31, 2011.
(e) The user fee relates to activities not identified in subsection (d) of this section for the Program, such as: development,
administration and implementation of a compliance and enforcement program; implementation and enforcement of the terms of
any Title V Operating Permit or synthetic minor permit; permit revisions or amendments, including the development of an applicable
requirement as part of the processing of the permit issuance, revision or amendment; the supporting and tracking of data;
modeling; and adequate resources to determine which sources are subject to the Program. Such fees shall be based on the emissions
of each air contaminant, in whole tons and in the aggregate, excluding carbon monoxide (CO) and particulate matter less than
2.5 microns (PM/2/i.5), as listed in the 2005 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants.
In calendar year 2009 the Department will place each subject source into 1 of the following 10 categories:
Category 1 Greater than 6,500 tons $149,681
Category 2 from 2,001 to 6,500 tons $106,915
Category 3 from 1,001 to 2,000 tons $ 42,766
Category 4 from 501 to 1,000 tons $ 25,660
Category 5 from 201 to 500 tons $ 11,974
Category 6 from 101 to 200 tons $ 5,132
Category 7 from 51 to 100 tons $ 3,849
Category 8 from 26 to 50 tons $ 2,566
Category 9 from 0 to 25 tons $ 1,711
Category 10 New sources that have applied
for a permit by December 31,
2008 $ 2,566
In calendar years 2010 and 2011 the Department will place each subject source into 1 of the following 10 categories:
Category 1 Greater than 6,500 tons $175,000
Category 2 from 2,001 to 6,500 tons $125,000
Category 3 from 1,001 to 2,000 tons $ 50,000
Category 4 from 501 to 1,000 tons $ 30,000
Category 5 from 201 to 500 tons $ 14,000
Category 6 from 101 to 200 tons $ 6,000
Category 7 from 51 to 100 tons $ 4,500
Category 8 from 26 to 50 tons $ 3,000
Category 9 from 0 to 25 tons $ 2,000
Category 10 New sources that have applied
for a permit by December 31,
2008 $ 3,000.
(f) Sources not included in the 2005 Delaware Point Source Emission Inventory of Estimated Actual Regulated Air Contaminants
or sources that have not applied for a Title V Operating Permit or synthetic minor facility permit by December 31, 2008, shall
be assessed a base fee that is consistent with the categories and amounts specified in subsection (d) of this section. The
estimated hours on which the base fee assessment is calculated shall include an evaluation of specific regulatory applicability
to the source. This shall include, but is not limited to, the following: new source review; new source performance standards;
toxic requirements, to include maximum achievable control technology and National Emission Standards for Hazardous Air Pollutants;
and continuous emission monitoring requirements. Such sources shall also be assessed a user fee based upon allowable emissions
specified in its permit that is consistent with the categories and amounts specified in subsection (e) of this section.
(g) These fees may be increased on an annual basis by no more than the Federal Consumer Price Index for the previous calendar
year. Any increases in fees are subject to review and approval by the committee established pursuant to § 6098 of this title.
After December 31, 2011, no fees shall be collected pursuant to this section unless authorized by a further act of the General
Assembly.
(h) In determining the amount of tons of actual emissions, the Department shall not be required to include any amount of air
contaminant emitted by any source in excess of 4,000 tons per year of that air contaminant. The determination of common control
or common ownership shall be consistent with the requirements of 40 C.F.R. Part 70.
(i) Any funds collected under this section shall be deposited in the account as described in § 6096 of this title, shall be
interest earning, and shall be used solely to develop, administer and implement the Program. The Secretary shall cause an
audit of the fiscal affairs to be made annually and shall furnish a copy of such audit report together with such additional
information or data with respect to the affairs as the Secretary may deem desirable to the Title V Operating Permit Program
Advisory Committee.
(j) The Department will continue to track for each source the actual hours spent processing Title V permits and performing
other related services under the Title V program and shall, as part of the annual fee assessment, provide each source with
the number of said hours expended during the preceding year. The Division of Air Quality will develop, by May 1 of each year,
the overall program costs, the fees collected, current staffing levels, program accomplishments, and each subject source's
total hours for the preceding calendar year in report form and present this report at an annual meeting with the Title V Operating
Permit Program Advisory Committee. The Division of Air Quality shall publish a notice announcing the availability of the report
in a paper of general circulation throughout the State. Additionally, the Division shall mail a copy of said notice to the
personnel on the Division of Air Quality's mailing lists.
69 Del. Laws, c. 121, § 1; 70 Del. Laws, c. 8, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 214, § 1; 73 Del. Laws, c. 318, § 1; 73 Del. Laws, c. 381, § 1; 75 Del. Laws, c. 172, §§ 1-5; 76 Del. Laws, c. 73, § 1; 76 Del. Laws, c. 312, § 1-7; 77 Del. Laws, c. 430, §§ 54, 55.;
§ 6098. Permit shield.
Except for sources required to have a permit before construction or modification under the applicable requirements of this
subchapter, if an applicant has submitted a timely and complete application for a permit required by this title (including
renewals), but final action has not been taken on such application, the source's failure to have a permit shall not be a violation
of this subchapter, unless the delay in final action was due to the failure of the applicant to timely submit information
required or requested to process the application.
72 Del. Laws, c. 214, § 3.;
§ 6099. Title V Operating Permit Program Advisory Committee.
There shall be established a "Title V Operating Permit Program Advisory Committee," hereinafter referred to as "Committee."
The Committee members shall be appointed by the Governor and shall include, but not be limited to, the Secretary of the Department
of Natural Resources and Environmental Control, or the Secretary's duly appointed designee; the Director of the Division of
Air Quality, or the Director's duly appointed designee; 2 members who will represent stationary sources; 1 to be a member
of the Chemical Industry Council; a member of the Delaware State Chamber of Commerce; a member representing a public utility;
2 members of a nationally affiliated or state environmental advocacy group; and the chairpersons of the House and the Senate
Natural Resource Committees. The Secretary of the Department of Natural Resources and Environmental Control shall serve as
the Chair of this Committee. The Committee shall provide the Governor and the General Assembly with a report on or before
February 1 of each year, for the previous calendar year, identifying the amounts and sources of fees collected pursuant to
§ 6097 of this title, the expenditures made by the Department to implement the Program, information regarding the performance
of the Program, whether the fees collected by § 6097 of this title are adequate to ensure the effective implementation of
the Program, and recommendations to remedy or improve any deficiencies or elements of the Program. The Committee shall submit
its final report on or before February 1, 2009, and shall cease to exist on that date absent a further act of the General
Assembly.
69 Del. Laws, c. 121, § 1; 70 Del. Laws, c. 8, § 3; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 214, §§ 2, 4; 73 Del. Laws, c. 381, § 2; 76 Del. Laws, c. 312, § 8; 77 Del. Laws, c. 430, § 56.;
Subchapter VIII. Clean Air Act Title V Operating Permit Program
§ 6095. Applicability.
This subchapter shall apply to all sources required to obtain a Title V Operating Permit pursuant to the federal Clean Air
Act Amendments of 1990. Such sources shall include, but not be limited to, the following:
(1) Sulfuric acid plants; municipal incinerators; fossil-fuel burners; petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels; petroleum refineries; sulfur recovery plants; chemical process plants;
(2) For pollutants other than radionuclides, any stationary source or group of stationary sources located within a contiguous
area and under common control or common ownership consistent with the requirements of 40 C.F.R. Part 70, that emits or has
the potential to emit, in the aggregate, 10 tons per year (tpy) or more of any hazardous air pollutant which has been listed
pursuant to Title I, § 112(b) of the Clean Air Act Amendments of 1990, Public Law 101 -- 549, 25 tpy or more of any combination
of such hazardous air pollutants, or such lesser quantity as the Department may establish by regulation;
(3) A source that directly emits or has the potential to emit, 100 tpy or more of any air pollutant, including any major source
of fugitive emissions of any such pollutant, as the Department may establish by regulation;
(4) For ozone nonattainment areas, sources with the potential to emit 100 tpy or more of volatile organic compounds or oxides
of nitrogen in areas classified as "marginal" or "moderate," 50 tpy or more in areas classified as "serious," 25 tpy or more
in areas classified as "severe," and sources subject to the requirements for preconstruction review; except that the references
in this paragraph to 100, 50, and 25 tpy of nitrogen oxides shall not apply with respect to any source for which the Department
has made a finding, pursuant to regulations, that requirements under this section do not apply;
(5) For areas within the northeast transport region, sources with the potential to emit 50 tpy or more of volatile organic
compounds; or
(6) Any other sources designated by the Department or mandated for designation by the United States Environmental Protection
Agency.
69 Del. Laws, c. 121, § 1.;
§ 6096. Title V account.
The Secretary shall establish a separate account entitled the "Clean Air Act Title V Operating Permit Program Account," hereinafter
the "Account." All fees collected under this subchapter shall be deposited into this account and utilized solely to cover
all direct and indirect costs required to support the Title V Operating Permit Program, hereinafter "Program." Any civil
or administrative penalties or costs recovered as a result of a violation of a Title V permit shall be used to further the
goals and purposes of the Department to promote clean air for the citizens of Delaware.
69 Del. Laws, c. 121, § 1.;
§ 6097. Fees.
(a) The Department shall collect an annual fee from sources that are required to obtain a Title V Operating Permit pursuant
to the Title V Program and from sources who voluntarily limit their potential to emit to below Title V applicability thresholds
as set forth in § 6095 of this title (i.e., a synthetic minor facility). The annual fees shall be utilized solely to pay for
all direct and indirect costs required to develop, administer and implement the Program.
(b) The fee schedule must result in the collection and retention of revenues sufficient to cover the permit program costs.
These costs include, but are not limited to, the costs of the following activities, as they relate to the operating permit
program for stationary sources: preparing generally applicable regulations or guidance documents regarding the permit program
}or its implementation or enforcement; reviewing and acting on any application for a permit, permit revision or permit renewal,
including the development of an applicable requirement as part of the processing of a permit or permit revision or renewal;
general administrative costs of implementing the permit program, including the supporting and tracking of data; implementing
and enforcing the terms of any Title V Operating Permit (not including any court costs or other costs associated with an enforcement
action), including adequate resources to determine which sources are subject to the program; emissions and ambient monitoring;
modeling; preparing inventories and tracking emissions; and supporting the ombudsman established pursuant to the Small Business
Stationary Source Technical and Environmental Compliance Program ("SBTCP") to assist sources covered by the SBTCP in determining
and meeting their obligations under the Title V Operating Permit Program.
(c) The Department shall collect annual fees, payable annually or in quarterly installments, during calendar years 2009, 2010
and 2011, from each source that is required to pay the annual fee as set forth in subsection (a) of this section. The annual
fee for each subject source will be determined by the sum of 2 component fees: a base fee and a user fee. For sources that
are identified in the 2005 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants or sources that have
applied for a Title V Operating Permit or synthetic minor facility permit by December 31, 2008, the base fee and the user
fee shall be calculated as set forth in subsections (d) and (e) of this section. For all other sources the base fee and user
fee shall be calculated as set forth in subsection (f) of this section.
(d) The base fee relates to services that are common to all sources subject to the program. These services include activities
such as permit issuance and renewals; stationary source regulation development; ambient monitoring; emission inventory; control
strategy development; and development, administration and implementation of 2 additional programs: the Small Business Stationary
Source Technical and Environmental Compliance Program and a portion of the accidental release prevention program.
In calendar year 2009 the Department will place each subject source into 1 of the following 11 categories:
Category A Greater than 6,000 hours $207,842
Category B from 5,001 to 6,000 hours $ 81,255
Category C from 4,001 to 5,000 hours $ 70,136
Category D from 3,001 to 4,000 hours $ 60,728
Category E from 2,001 to 3,000 hours $ 42,766
Category F from 1,501 to 2,000 hours $ 31,647
Category G from 1,001 to 1,500 hours $ 21,383
Category H from 667 to 1,000 hours $ 13,685
Category I from 334 to 666 hours $ 6,843
Category J from 0 to 333 hours $ 4,277
Category K New sources that have applied for
a permit by December 31, 2008 $ 5,132
In calendar years 2010 and 2011 the Department will place each subject source into 1 of the following 11 categories:
Category A Greater than 6,000 hours ☺$243,000
Category B from 5,001 to 6,000 hours ☺$ 95,000
Category C from 4,001 to 5,000 hours ☺$ 82,000
Category D from 3,001 to 4,000 hours ☺$ 71,000
Category E from 2,001 to 3,000 hours ☺$ 50,000
Category F from 1,501 to 2,000 hours ☺$ 37,000
Category G from 1,001 to 1,500 hours ☺$ 25,000
Category H from 667 to 1,000 hours ☺$ 16,000
Category I from 334 to 666 hours ☺$ 8,000
Category J from 0 to 333 hours ☺$ 5,000
Category K New sources that have applied for a per-
mit by December 31, 2008 ☺$ 6,000
Determination shall be based upon the most recent 5 year's data of engineering, compliance, and enforcement hours expended
for each facility. The Department will continue to track the actual hours spent processing Title V permits and performing
other related services under the Title V program. This information may be used in the evaluations of the Title V program associated
with the expiration of this statute on December 31, 2011.
(e) The user fee relates to activities not identified in subsection (d) of this section for the Program, such as: development,
administration and implementation of a compliance and enforcement program; implementation and enforcement of the terms of
any Title V Operating Permit or synthetic minor permit; permit revisions or amendments, including the development of an applicable
requirement as part of the processing of the permit issuance, revision or amendment; the supporting and tracking of data;
modeling; and adequate resources to determine which sources are subject to the Program. Such fees shall be based on the emissions
of each air contaminant, in whole tons and in the aggregate, excluding carbon monoxide (CO) and particulate matter less than
2.5 microns (PM/2/i.5), as listed in the 2005 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants.
In calendar year 2009 the Department will place each subject source into 1 of the following 10 categories:
Category 1 Greater than 6,500 tons $149,681
Category 2 from 2,001 to 6,500 tons $106,915
Category 3 from 1,001 to 2,000 tons $ 42,766
Category 4 from 501 to 1,000 tons $ 25,660
Category 5 from 201 to 500 tons $ 11,974
Category 6 from 101 to 200 tons $ 5,132
Category 7 from 51 to 100 tons $ 3,849
Category 8 from 26 to 50 tons $ 2,566
Category 9 from 0 to 25 tons $ 1,711
Category 10 New sources that have applied
for a permit by December 31,
2008 $ 2,566
In calendar years 2010 and 2011 the Department will place each subject source into 1 of the following 10 categories:
Category 1 Greater than 6,500 tons $175,000
Category 2 from 2,001 to 6,500 tons $125,000
Category 3 from 1,001 to 2,000 tons $ 50,000
Category 4 from 501 to 1,000 tons $ 30,000
Category 5 from 201 to 500 tons $ 14,000
Category 6 from 101 to 200 tons $ 6,000
Category 7 from 51 to 100 tons $ 4,500
Category 8 from 26 to 50 tons $ 3,000
Category 9 from 0 to 25 tons $ 2,000
Category 10 New sources that have applied
for a permit by December 31,
2008 $ 3,000.
(f) Sources not included in the 2005 Delaware Point Source Emission Inventory of Estimated Actual Regulated Air Contaminants
or sources that have not applied for a Title V Operating Permit or synthetic minor facility permit by December 31, 2008, shall
be assessed a base fee that is consistent with the categories and amounts specified in subsection (d) of this section. The
estimated hours on which the base fee assessment is calculated shall include an evaluation of specific regulatory applicability
to the source. This shall include, but is not limited to, the following: new source review; new source performance standards;
toxic requirements, to include maximum achievable control technology and National Emission Standards for Hazardous Air Pollutants;
and continuous emission monitoring requirements. Such sources shall also be assessed a user fee based upon allowable emissions
specified in its permit that is consistent with the categories and amounts specified in subsection (e) of this section.
(g) These fees may be increased on an annual basis by no more than the Federal Consumer Price Index for the previous calendar
year. Any increases in fees are subject to review and approval by the committee established pursuant to § 6098 of this title.
After December 31, 2011, no fees shall be collected pursuant to this section unless authorized by a further act of the General
Assembly.
(h) In determining the amount of tons of actual emissions, the Department shall not be required to include any amount of air
contaminant emitted by any source in excess of 4,000 tons per year of that air contaminant. The determination of common control
or common ownership shall be consistent with the requirements of 40 C.F.R. Part 70.
(i) Any funds collected under this section shall be deposited in the account as described in § 6096 of this title, shall be
interest earning, and shall be used solely to develop, administer and implement the Program. The Secretary shall cause an
audit of the fiscal affairs to be made annually and shall furnish a copy of such audit report together with such additional
information or data with respect to the affairs as the Secretary may deem desirable to the Title V Operating Permit Program
Advisory Committee.
(j) The Department will continue to track for each source the actual hours spent processing Title V permits and performing
other related services under the Title V program and shall, as part of the annual fee assessment, provide each source with
the number of said hours expended during the preceding year. The Division of Air Quality will develop, by May 1 of each year,
the overall program costs, the fees collected, current staffing levels, program accomplishments, and each subject source's
total hours for the preceding calendar year in report form and present this report at an annual meeting with the Title V Operating
Permit Program Advisory Committee. The Division of Air Quality shall publish a notice announcing the availability of the report
in a paper of general circulation throughout the State. Additionally, the Division shall mail a copy of said notice to the
personnel on the Division of Air Quality's mailing lists.
69 Del. Laws, c. 121, § 1; 70 Del. Laws, c. 8, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 214, § 1; 73 Del. Laws, c. 318, § 1; 73 Del. Laws, c. 381, § 1; 75 Del. Laws, c. 172, §§ 1-5; 76 Del. Laws, c. 73, § 1; 76 Del. Laws, c. 312, § 1-7; 77 Del. Laws, c. 430, §§ 54, 55.;
§ 6098. Permit shield.
Except for sources required to have a permit before construction or modification under the applicable requirements of this
subchapter, if an applicant has submitted a timely and complete application for a permit required by this title (including
renewals), but final action has not been taken on such application, the source's failure to have a permit shall not be a violation
of this subchapter, unless the delay in final action was due to the failure of the applicant to timely submit information
required or requested to process the application.
72 Del. Laws, c. 214, § 3.;
§ 6099. Title V Operating Permit Program Advisory Committee.
There shall be established a "Title V Operating Permit Program Advisory Committee," hereinafter referred to as "Committee."
The Committee members shall be appointed by the Governor and shall include, but not be limited to, the Secretary of the Department
of Natural Resources and Environmental Control, or the Secretary's duly appointed designee; the Director of the Division of
Air Quality, or the Director's duly appointed designee; 2 members who will represent stationary sources; 1 to be a member
of the Chemical Industry Council; a member of the Delaware State Chamber of Commerce; a member representing a public utility;
2 members of a nationally affiliated or state environmental advocacy group; and the chairpersons of the House and the Senate
Natural Resource Committees. The Secretary of the Department of Natural Resources and Environmental Control shall serve as
the Chair of this Committee. The Committee shall provide the Governor and the General Assembly with a report on or before
February 1 of each year, for the previous calendar year, identifying the amounts and sources of fees collected pursuant to
§ 6097 of this title, the expenditures made by the Department to implement the Program, information regarding the performance
of the Program, whether the fees collected by § 6097 of this title are adequate to ensure the effective implementation of
the Program, and recommendations to remedy or improve any deficiencies or elements of the Program. The Committee shall submit
its final report on or before February 1, 2009, and shall cease to exist on that date absent a further act of the General
Assembly.
69 Del. Laws, c. 121, § 1; 70 Del. Laws, c. 8, § 3; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 214, §§ 2, 4; 73 Del. Laws, c. 381, § 2; 76 Del. Laws, c. 312, § 8; 77 Del. Laws, c. 430, § 56.;
Subchapter VIII. Clean Air Act Title V Operating Permit Program
§ 6095. Applicability.
This subchapter shall apply to all sources required to obtain a Title V Operating Permit pursuant to the federal Clean Air
Act Amendments of 1990. Such sources shall include, but not be limited to, the following:
(1) Sulfuric acid plants; municipal incinerators; fossil-fuel burners; petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels; petroleum refineries; sulfur recovery plants; chemical process plants;
(2) For pollutants other than radionuclides, any stationary source or group of stationary sources located within a contiguous
area and under common control or common ownership consistent with the requirements of 40 C.F.R. Part 70, that emits or has
the potential to emit, in the aggregate, 10 tons per year (tpy) or more of any hazardous air pollutant which has been listed
pursuant to Title I, § 112(b) of the Clean Air Act Amendments of 1990, Public Law 101 -- 549, 25 tpy or more of any combination
of such hazardous air pollutants, or such lesser quantity as the Department may establish by regulation;
(3) A source that directly emits or has the potential to emit, 100 tpy or more of any air pollutant, including any major source
of fugitive emissions of any such pollutant, as the Department may establish by regulation;
(4) For ozone nonattainment areas, sources with the potential to emit 100 tpy or more of volatile organic compounds or oxides
of nitrogen in areas classified as "marginal" or "moderate," 50 tpy or more in areas classified as "serious," 25 tpy or more
in areas classified as "severe," and sources subject to the requirements for preconstruction review; except that the references
in this paragraph to 100, 50, and 25 tpy of nitrogen oxides shall not apply with respect to any source for which the Department
has made a finding, pursuant to regulations, that requirements under this section do not apply;
(5) For areas within the northeast transport region, sources with the potential to emit 50 tpy or more of volatile organic
compounds; or
(6) Any other sources designated by the Department or mandated for designation by the United States Environmental Protection
Agency.
69 Del. Laws, c. 121, § 1.;
§ 6096. Title V account.
The Secretary shall establish a separate account entitled the "Clean Air Act Title V Operating Permit Program Account," hereinafter
the "Account." All fees collected under this subchapter shall be deposited into this account and utilized solely to cover
all direct and indirect costs required to support the Title V Operating Permit Program, hereinafter "Program." Any civil
or administrative penalties or costs recovered as a result of a violation of a Title V permit shall be used to further the
goals and purposes of the Department to promote clean air for the citizens of Delaware.
69 Del. Laws, c. 121, § 1.;
§ 6097. Fees.
(a) The Department shall collect an annual fee from sources that are required to obtain a Title V Operating Permit pursuant
to the Title V Program and from sources who voluntarily limit their potential to emit to below Title V applicability thresholds
as set forth in § 6095 of this title (i.e., a synthetic minor facility). The annual fees shall be utilized solely to pay for
all direct and indirect costs required to develop, administer and implement the Program.
(b) The fee schedule must result in the collection and retention of revenues sufficient to cover the permit program costs.
These costs include, but are not limited to, the costs of the following activities, as they relate to the operating permit
program for stationary sources: preparing generally applicable regulations or guidance documents regarding the permit program
}or its implementation or enforcement; reviewing and acting on any application for a permit, permit revision or permit renewal,
including the development of an applicable requirement as part of the processing of a permit or permit revision or renewal;
general administrative costs of implementing the permit program, including the supporting and tracking of data; implementing
and enforcing the terms of any Title V Operating Permit (not including any court costs or other costs associated with an enforcement
action), including adequate resources to determine which sources are subject to the program; emissions and ambient monitoring;
modeling; preparing inventories and tracking emissions; and supporting the ombudsman established pursuant to the Small Business
Stationary Source Technical and Environmental Compliance Program ("SBTCP") to assist sources covered by the SBTCP in determining
and meeting their obligations under the Title V Operating Permit Program.
(c) The Department shall collect annual fees, payable annually or in quarterly installments, during calendar years 2009, 2010
and 2011, from each source that is required to pay the annual fee as set forth in subsection (a) of this section. The annual
fee for each subject source will be determined by the sum of 2 component fees: a base fee and a user fee. For sources that
are identified in the 2005 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants or sources that have
applied for a Title V Operating Permit or synthetic minor facility permit by December 31, 2008, the base fee and the user
fee shall be calculated as set forth in subsections (d) and (e) of this section. For all other sources the base fee and user
fee shall be calculated as set forth in subsection (f) of this section.
(d) The base fee relates to services that are common to all sources subject to the program. These services include activities
such as permit issuance and renewals; stationary source regulation development; ambient monitoring; emission inventory; control
strategy development; and development, administration and implementation of 2 additional programs: the Small Business Stationary
Source Technical and Environmental Compliance Program and a portion of the accidental release prevention program.
In calendar year 2009 the Department will place each subject source into 1 of the following 11 categories:
Category A Greater than 6,000 hours $207,842
Category B from 5,001 to 6,000 hours $ 81,255
Category C from 4,001 to 5,000 hours $ 70,136
Category D from 3,001 to 4,000 hours $ 60,728
Category E from 2,001 to 3,000 hours $ 42,766
Category F from 1,501 to 2,000 hours $ 31,647
Category G from 1,001 to 1,500 hours $ 21,383
Category H from 667 to 1,000 hours $ 13,685
Category I from 334 to 666 hours $ 6,843
Category J from 0 to 333 hours $ 4,277
Category K New sources that have applied for
a permit by December 31, 2008 $ 5,132
In calendar years 2010 and 2011 the Department will place each subject source into 1 of the following 11 categories:
Category A Greater than 6,000 hours ☺$243,000
Category B from 5,001 to 6,000 hours ☺$ 95,000
Category C from 4,001 to 5,000 hours ☺$ 82,000
Category D from 3,001 to 4,000 hours ☺$ 71,000
Category E from 2,001 to 3,000 hours ☺$ 50,000
Category F from 1,501 to 2,000 hours ☺$ 37,000
Category G from 1,001 to 1,500 hours ☺$ 25,000
Category H from 667 to 1,000 hours ☺$ 16,000
Category I from 334 to 666 hours ☺$ 8,000
Category J from 0 to 333 hours ☺$ 5,000
Category K New sources that have applied for a per-
mit by December 31, 2008 ☺$ 6,000
Determination shall be based upon the most recent 5 year's data of engineering, compliance, and enforcement hours expended
for each facility. The Department will continue to track the actual hours spent processing Title V permits and performing
other related services under the Title V program. This information may be used in the evaluations of the Title V program associated
with the expiration of this statute on December 31, 2011.
(e) The user fee relates to activities not identified in subsection (d) of this section for the Program, such as: development,
administration and implementation of a compliance and enforcement program; implementation and enforcement of the terms of
any Title V Operating Permit or synthetic minor permit; permit revisions or amendments, including the development of an applicable
requirement as part of the processing of the permit issuance, revision or amendment; the supporting and tracking of data;
modeling; and adequate resources to determine which sources are subject to the Program. Such fees shall be based on the emissions
of each air contaminant, in whole tons and in the aggregate, excluding carbon monoxide (CO) and particulate matter less than
2.5 microns (PM/2/i.5), as listed in the 2005 Delaware Point Source Emission Inventory of Estimated Actual Air Contaminants.
In calendar year 2009 the Department will place each subject source into 1 of the following 10 categories:
Category 1 Greater than 6,500 tons $149,681
Category 2 from 2,001 to 6,500 tons $106,915
Category 3 from 1,001 to 2,000 tons $ 42,766
Category 4 from 501 to 1,000 tons $ 25,660
Category 5 from 201 to 500 tons $ 11,974
Category 6 from 101 to 200 tons $ 5,132
Category 7 from 51 to 100 tons $ 3,849
Category 8 from 26 to 50 tons $ 2,566
Category 9 from 0 to 25 tons $ 1,711
Category 10 New sources that have applied
for a permit by December 31,
2008 $ 2,566
In calendar years 2010 and 2011 the Department will place each subject source into 1 of the following 10 categories:
Category 1 Greater than 6,500 tons $175,000
Category 2 from 2,001 to 6,500 tons $125,000
Category 3 from 1,001 to 2,000 tons $ 50,000
Category 4 from 501 to 1,000 tons $ 30,000
Category 5 from 201 to 500 tons $ 14,000
Category 6 from 101 to 200 tons $ 6,000
Category 7 from 51 to 100 tons $ 4,500
Category 8 from 26 to 50 tons $ 3,000
Category 9 from 0 to 25 tons $ 2,000
Category 10 New sources that have applied
for a permit by December 31,
2008 $ 3,000.
(f) Sources not included in the 2005 Delaware Point Source Emission Inventory of Estimated Actual Regulated Air Contaminants
or sources that have not applied for a Title V Operating Permit or synthetic minor facility permit by December 31, 2008, shall
be assessed a base fee that is consistent with the categories and amounts specified in subsection (d) of this section. The
estimated hours on which the base fee assessment is calculated shall include an evaluation of specific regulatory applicability
to the source. This shall include, but is not limited to, the following: new source review; new source performance standards;
toxic requirements, to include maximum achievable control technology and National Emission Standards for Hazardous Air Pollutants;
and continuous emission monitoring requirements. Such sources shall also be assessed a user fee based upon allowable emissions
specified in its permit that is consistent with the categories and amounts specified in subsection (e) of this section.
(g) These fees may be increased on an annual basis by no more than the Federal Consumer Price Index for the previous calendar
year. Any increases in fees are subject to review and approval by the committee established pursuant to § 6098 of this title.
After December 31, 2011, no fees shall be collected pursuant to this section unless authorized by a further act of the General
Assembly.
(h) In determining the amount of tons of actual emissions, the Department shall not be required to include any amount of air
contaminant emitted by any source in excess of 4,000 tons per year of that air contaminant. The determination of common control
or common ownership shall be consistent with the requirements of 40 C.F.R. Part 70.
(i) Any funds collected under this section shall be deposited in the account as described in § 6096 of this title, shall be
interest earning, and shall be used solely to develop, administer and implement the Program. The Secretary shall cause an
audit of the fiscal affairs to be made annually and shall furnish a copy of such audit report together with such additional
information or data with respect to the affairs as the Secretary may deem desirable to the Title V Operating Permit Program
Advisory Committee.
(j) The Department will continue to track for each source the actual hours spent processing Title V permits and performing
other related services under the Title V program and shall, as part of the annual fee assessment, provide each source with
the number of said hours expended during the preceding year. The Division of Air Quality will develop, by May 1 of each year,
the overall program costs, the fees collected, current staffing levels, program accomplishments, and each subject source's
total hours for the preceding calendar year in report form and present this report at an annual meeting with the Title V Operating
Permit Program Advisory Committee. The Division of Air Quality shall publish a notice announcing the availability of the report
in a paper of general circulation throughout the State. Additionally, the Division shall mail a copy of said notice to the
personnel on the Division of Air Quality's mailing lists.
69 Del. Laws, c. 121, § 1; 70 Del. Laws, c. 8, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 214, § 1; 73 Del. Laws, c. 318, § 1; 73 Del. Laws, c. 381, § 1; 75 Del. Laws, c. 172, §§ 1-5; 76 Del. Laws, c. 73, § 1; 76 Del. Laws, c. 312, § 1-7; 77 Del. Laws, c. 430, §§ 54, 55.;
§ 6098. Permit shield.
Except for sources required to have a permit before construction or modification under the applicable requirements of this
subchapter, if an applicant has submitted a timely and complete application for a permit required by this title (including
renewals), but final action has not been taken on such application, the source's failure to have a permit shall not be a violation
of this subchapter, unless the delay in final action was due to the failure of the applicant to timely submit information
required or requested to process the application.
72 Del. Laws, c. 214, § 3.;
§ 6099. Title V Operating Permit Program Advisory Committee.
There shall be established a "Title V Operating Permit Program Advisory Committee," hereinafter referred to as "Committee."
The Committee members shall be appointed by the Governor and shall include, but not be limited to, the Secretary of the Department
of Natural Resources and Environmental Control, or the Secretary's duly appointed designee; the Director of the Division of
Air Quality, or the Director's duly appointed designee; 2 members who will represent stationary sources; 1 to be a member
of the Chemical Industry Council; a member of the Delaware State Chamber of Commerce; a member representing a public utility;
2 members of a nationally affiliated or state environmental advocacy group; and the chairpersons of the House and the Senate
Natural Resource Committees. The Secretary of the Department of Natural Resources and Environmental Control shall serve as
the Chair of this Committee. The Committee shall provide the Governor and the General Assembly with a report on or before
February 1 of each year, for the previous calendar year, identifying the amounts and sources of fees collected pursuant to
§ 6097 of this title, the expenditures made by the Department to implement the Program, information regarding the performance
of the Program, whether the fees collected by § 6097 of this title are adequate to ensure the effective implementation of
the Program, and recommendations to remedy or improve any deficiencies or elements of the Program. The Committee shall submit
its final report on or before February 1, 2009, and shall cease to exist on that date absent a further act of the General
Assembly.
69 Del. Laws, c. 121, § 1; 70 Del. Laws, c. 8, § 3; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 214, §§ 2, 4; 73 Del. Laws, c. 381, § 2; 76 Del. Laws, c. 312, § 8; 77 Del. Laws, c. 430, § 56.;
