TITLE 17. CALIFORNIA AIR RESOURCES BOARD
NOTICE OF PUBLIC HEARING TO CONSIDER AMENDMENTS TO THE AIR TOXICS HOT SPOTS FEE REGULATION FOR FISCAL YEAR 1998-99.
The Air Resources Board (ARB) will conduct a public hearing at the time and place noted below to consider amendments to the Air Toxics Hot Spots Fee Regulation for Fiscal Year 1998-99.
|October 22, 1998|
|Air Resources Board
Board Hearing Room, Lower Level
2020 L Street
This item will be considered at a two-day meeting of the ARB commencing at 9:30 a.m., October 22, 1998, and continuing at 8:30 a.m., October 23, 1998, if necessary. This item may not be considered until October 23, 1998. Please consult the agenda for this meeting, which will be available at least ten days before October 22, 1998, to determine the day on which this item will be considered.
This facility is accessible to persons with disabilities. If accommodation is needed, please contact Kathy Spring at (916) 323-3485, or Telecommunications Device for the Deaf (TDD) at (916) 324-9531, or (800) 700-8326 for TDD calls from outside the Sacramento area, by October 8, 1998.
INFORMATIVE DIGEST OF PROPOSED ACTION/PLAIN ENGLISH POLICY STATEMENT OVERVIEW
Proposed Actions and Sections Affected: Proposed amendments to sections 90701, 90702, 90703, 90704 and 90705, title 17, California Code of Regulations (CCR) and Appendix A to sections 90700-90705 (The Air Toxics Hot Spots Fee Regulation).
The objective of the Air Toxics Hot Spots Fee Regulation (Fee Regulation) is to recover the State's and the local air pollution control and air quality management districts' (districts) costs of implementing and administering the Air Toxics Hot Spots Information and Assessment Act. The fees assessed through this regulation will be used to inventory air toxics emissions, prioritize facilities, prepare risk assessments, review risk assessments, notify the public of potential health risks from exposure to the emissions, and provide guidance to the facilities for reducing the potential risk from exposure to the emissions. The regulation specifically allocates the State's costs among the air districts, and it establishes facility fees for the seven districts that have requested the ARB to adopt their facility fee schedules.
Background: The Air Toxics "Hot Spots" Information and Assessment Act of 1987 (the Act) (Health and Safety Code section 44300 et seq.) established a program to compile an inventory of air toxics emissions from facilities in California and to assess the potential risks to public health as a result of exposure to these emissions. The Act also requires that the public be notified of facilities whose emissions pose potentially significant health risks. The high risk facilities must reduce their toxic emissions below the level of significance within five years pursuant to Health and Safety Code section 44391(a). The Act specifies activities that the ARB, the Office of Environmental Health Hazard Assessment (OEHHA), and the districts must carry out to implement the Act. The Act requires the ARB to adopt a fee regulation to ensure that costs incurred by the State and air districts to implement and administer the Air Toxics Hot Spots Program (Program) are recovered by assessing fees on facilities subject to the requirements of the Act (Health and Safety Code section 44380).
The ARB adopted the first Fee Regulation in 1988. Each year thereafter, the ARB staff in consultation with the Fee Regulation Committee (which is comprised of representatives of the ARB, the districts, and OEHHA) reviewed the Fee Regulation and proposed amendments for the ARB's consideration. Annual revisions have been needed to ensure that the State's and districts' costs of implementing the Program are fully recovered.
Districts may recover their Program costs and their portions of the State's cost by adopting their own fee rules or by requesting the ARB to adopt fee regulations for them. If a district requests the ARB to adopt its fee regulation, it must submit its Program costs, approved by its district governing board, to the ARB by April 1 prior to the beginning of the fiscal year for which the fees are to apply. Six districts submitted district board approved costs for fiscal year 1998-99, and those districts have requested that the ARB adopt their facility fee regulations.
The Act established an air quality program unique to the State of California. No equivalent federal requirement at this time targets toxics Hot Spots facilities. Accordingly, there is no conflict or duplication between this Fee Regulation and current federal regulations.
Reduction in the State's Cost: The staff proposes that the Board again reduce State costs to implement the Air Toxics Hot Spots Program to $1.27 million. This represents an approximate 6 percent, or $80,000, reduction from fiscal year 1997-98 and a 76 percent reduction from Fiscal Year 1993-94 in State revenues to implement and administer the Program. The five percent adjustment factor that has been included in all previous Fee Regulations has not been included for fiscal year 1998-99. The adjustment factor had been added to the State's cost to ensure full cost recovery in the event of unforeseen business closures, nonpayment of fees, or other circumstances which would result in a shortfall in anticipated revenue. Based on historical fee collection patterns, it is possible that the State could realize an additional shortfall of approximately $70,000 for fiscal year 1998-99. With the $80,000 reduction in the State's Program costs, revenues for fiscal year 1998-99 could fall approximately $150,000 below the State's fiscal year 1997-98 Program costs.
Proposed Amendments to the Fee Regulation for Fiscal Year 1998-99 include:
These proposed changes to the Fee Regulation for Fiscal Year 1998-99 are discussed in more detail in the Initial Statement of Reasons for Proposed Rulemaking for the Amendments to the Air Toxics "Hot Spots" Fee Regulation for fiscal year 1998-99.
AVAILABILITY OF DOCUMENTS AND CONTACT PERSON
The ARB has determined that it is not feasible to draft the regulation in plain English due to the technical nature of the regulation; however, a noncontrolling plain English summary of the regulation is available from the agency contact person named in this notice. The plain English summary is also included in the Initial Statement of Reasons, Executive Summary.
The ARB staff has prepared a Staff Report entitled "Proposed Amendments to the Air Toxics 'Hot Spots' Fee Regulation for Fiscal Year 1998-99" (Staff Report), which includes the Initial Statement of Reasons for the proposed action and a summary of the environmental impacts of the proposal, if any. Copies of the Staff Report and the full text of the proposed regulatory language, in underline and strike-out format, may be obtained from the California Air Resources Board, Public Information Office, 2020 L Street, Sacramento, California 95814, (916) 322-2990, at least 45 days prior to the scheduled hearing. The ARB staff has compiled a record which includes all information upon which the proposal is based. Copies of the documents may be obtained through the Public Information Office, 2020 L Street, Sacramento, California 95814.
To obtain this document in an alternative format, please contact the Air Resources Board's Americans with Disabilities Act Coordinator at (916) 322-4505, or the Telecommunications Device for the Deaf (TDD) at (916) 324-9531, or (800) 700-8326 for TDD calls from outside the Sacramento area.
Further inquiries regarding this matter should be directed to Linda Murchison, Chief, Emission Inventory Branch, Technical Support Division, P.O. Box 2815, Sacramento, California 95812, (916) 322-6021.
COSTS TO PUBLIC AGENCIES AND TO BUSINESSES AND PERSONS AFFECTED
The determinations of ARB's Executive Officer concerning the cost or savings necessarily incurred in reasonable compliance with the proposed amendments to the Fee Regulation are presented below.
The ARB's Executive Officer has determined that the amended Fee Regulation will impose a mandate upon and create costs to the districts with jurisdiction over facilities subject to the Act. However, the mandate does not require State reimbursement to the districts pursuant to Government Code sections 17500 et seq. and section 6 of Article XIIIB of the California Constitution because the districts have the authority to levy fees sufficient to pay for the mandated Program (Health and Safety Code section 44380). These fees are intended to recover the full costs of district implementation of the Air Toxics Hot Spots Program, including compliance with the amended Fee Regulation. The cost to the districts to implement the amended Fee Regulation is approximately 10 percent of the district's total Program costs. For Fiscal Year 1998-99, the total district Program costs are estimated to be $3,087,594. Therefore, the costs to the districts to implement the amended Fee Regulation are approximately $308,759.
The Executive Officer has determined that adoption of the amended Fee Regulation will impose a mandate upon and create costs to some publicly owned treatment works (POTWs). POTWs are subject to the Fee Regulation if they emit or use substances listed in Appendix A of the Emission Inventory Criteria and Guidelines Report (title 17, CCR, section 93300.5), release the specified quantity of at least one of the four specified criteria pollutants, and are classified by the district in one of the prescribed Program categories. The costs of complying with the Fee Regulation are not reimbursable within the meaning of section 6, article XIIIB, California Constitution and Government Code sections 17500 et seq., because POTWs are authorized to levy service charges to cover the costs associated with the mandated Program. The ARB staff estimates the total cost for POTWs to comply with the Fee Regulation to be $36,729 for Fiscal Year 1998-99.
The Executive Officer has determined that the amended Fee Regulation does not create costs or savings in federal funding to any State agency or program.
The Executive Officer has also determined that the amended Fee Regulation will impose costs on affected State agencies. The costs to the ARB to implement and administer the Air Toxics Hot Spots Program, including the amended Fee Regulation, will be recovered by fees authorized by Health and Safety Code section 44380 and sections 90700-90705 of title 17, CCR. The costs for the ARB to develop and implement the amended Fee Regulation are estimated to be $114,000.
Other affected State agencies (e.g., universities, hospitals, correctional institutions, and laboratories) that must pay fees pursuant to the amended Fee Regulation as emitters of specified pollutants should be able to absorb their costs within existing budgets and resources. Costs to these State agencies were estimated to total $18,312 for Fiscal Year 1998-99.
The ARB's Executive Officer has determined, pursuant to Government Code section 11346.5(a)(3)(B), that the regulation will affect small business. In an effort to reduce those potential impacts on small businesses, the ARB staff has placed a cap of $300 for those facilities that fit the definition of small business in the Fee Regulation. Facilities that fit the definition of industrywide facilities found in Health and Safety Code section 44323 are currently assessed an annual State portion of fees of $25. The proposed amendments would increase this fee to $35.
In developing the proposal, the staff has determined there is a potential cost impact on private persons or businesses directly affected by the regulation. The economic impact the Program fees have on individual facilities is related to the facility's prioritization score or the results of a health risk assessment. Program fees for those districts the State is adopting a fee schedule for range from $71 to $14,139. The fees for specific facility program categories for those districts for which the State is adopting fee schedules can be found in Table 3 of Appendix I of the Initial Statement of Reasons for the proposed amendments to the Air Toxics Hot Spots Fee Regulation for fiscal year 1998-99.
The Executive Officer has also determined that adopting these amendments may have a significant, adverse economic impact on some businesses operating with little or no margin of profitability, including the ability of California businesses to compete with businesses in other states, based on an assessment of the evidence available in the record.
Accordingly, the following information is provided pursuant to Government Code section 11346.5(a)(7):
All businesses that emit a criteria pollutant and a listed substance (Health and Safety Code sections 44320-44322; title 17, CCR, section 90702) must pay a Hot Spots fee, (Health and Safety Code sections 44380-44382; title 17, CCR, sections 90703-90705) unless specified conditions have been met, and will be affected by these proposed amendments. Businesses that are operating with little or no margin of profitability may experience significant adverse impacts by paying these fees. Appendix VI of the Staff Report includes a list, which may be modified, of the categories of businesses that may be included in the scope of this regulation.
To comply with these proposed amendments, businesses will have to pay the fees assessed on them. These proposed amendments will not result in any additional reporting, record keeping, or other compliance requirements, beyond keeping records of payment.
Submissions may also include the following considerations which more closely apply to these amendments:
In accordance with Government Code section 11346.3, the Executive Officer has determined that for businesses operating with little or no margin of profitability, the proposed regulatory action may affect the creation or elimination of jobs within the State of California, the creation of new businesses or the elimination of existing businesses within California, or the expansion of businesses currently doing business within California. A detailed assessment of the economic impacts of the proposed regulatory action can be found in the Staff Report.
In considering the proposed amendments, the ARB must determine that no alternative considered by the agency would be more effective in carrying out the purpose for which the amendments are proposed or would be as effective and less burdensome to affected private persons than the proposed action. The imposition of the fees and the requirement that the fees, in the aggregate, cover costs of implementing the Program, are mandated by statute. However, the Fee Regulation includes a cap on fees for small businesses. Additionally, existing exemptions will continue relieve lower-risk facilities from paying any fee. These provisions are meant to minimize the burden of the regulation.
SUBMITTAL OF COMMENTS
The public may present comments relating to this matter orally or in writing. To be considered by the Board, written submissions must be addressed to and received by the Clerk of the Board, Air Resources Board, P.O. Box 2815, Sacramento, California 95812, no later than 12:00 noon, October 21, 1998, or received by the Clerk of the Board at the hearing.
The Board requests but does not require that 20 copies of any written statement be submitted and that all written statements be filed at least ten days prior to the hearing. ARB encourages members of the public to bring any suggestions for modification of the proposed regulatory action to the attention of staff in advance of the hearing.
STATUTORY AUTHORITY AND HEARING PROCEDURES
Amendments to the Fee Regulation are proposed under the authority granted to ARB in sections 39600, 39601, 44321, 44380, and 44380.5 of the Health and Safety Code. The purpose of the Fee Regulation is to implement, interpret, and make specific sections 44320, 44321, 44322, 44361, 44380, and 44380.5 of the Health and Safety Code.
The public hearing will be conducted in accordance with the California Administrative Procedure Act, title 2, division 3, part 1, chapter 3.5 (commencing with section 11340) of the Government Code.
Following the public hearing, the ARB may adopt the regulatory language as originally proposed, or with nonsubstantive or grammatical modifications. The ARB may also adopt the proposed regulatory language with other modifications, if the text as modified is sufficiently related to the originally proposed text that the public was adequately placed on notice that the regulatory language, as modified, could result from the proposed regulatory action. Such modifications are expected to include but are not limited to the following:
In the event that such modifications are made, the full regulatory text with the modifications clearly indicated will be made available to the public for written comment at least 15 days before it is adopted. The public may request a copy of the modified regulatory text from the Air Resources Board Public Information Officer, 2020 L Street, 1st Floor, Sacramento, California 95814, (916) 322-2990.
This is a statewide regulation. Once adopted by the ARB, and approved by the Office of Administrative Law, the fee schedule will be applicable to all subject facilities in the six air districts for which the proposed amendments would provide fee schedules. The remaining 29 air districts will be required to adopt district rules to comply with the Fee Regulation.
CALIFORNIA AIR RESOURCES BOARD
Michael P. Kenny
Date: August 25, 1998