Declaratory Ruling 19-17: Dolomite Products Co.
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of the Petition of
Dolomite Products Co., d/b/a
Rochester Asphalt Materials, and
Manitou Construction Co., Inc. d/b/a
Iroquois Rock Production ("Petitioners")
for a Declaratory Ruling
Petitioners, through their representative Mr. Kevin J. Brown, Esq., have petitioned the Department of Environmental Conservation (Department) pursuant to Title 6 New York Code of Rules and Regulations Part (6 NYCRR) 619, for a declaratory ruling to determine whether the Department's Air Pollution Program Fees for the Petitioners' Hot Mix Asphalt (HMA) Plants should be assessed pursuant to New York State Environmental Conservation Law (ECL) §72-0302 and 6 NYCRR 482-1, the State's Air Quality Control Fees, or pursuant to ECL §72-0303 and 6 NYCRR 482-2, the State's Operating Permit Program Fees.
Pursuant to §204 of the State Administrative Procedure Act (SAPA), on petition of any person, any agency may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it. A declaratory ruling is binding upon the agency unless it is altered or set aside by a court. An agency may not retroactively change a valid declaratory ruling, but nothing in SAPA prevents an agency from prospectively changing any declaratory ruling.
The Department implements SAPA §204 through 6 NYCRR 619. For the purposes of issuing a declaratory ruling only, the Department will assume that the facts alleged in the Petition are true, subject to the caveat that the Department may take official notice of any fact not subject to reasonable dispute if it is either generally known or can be accurately and readily verified (6 NYCRR 619.2[b]). The binding effect of the ruling is limited by the assumed or readily verifiable fact predicate (see Power Auth. of State of N. Y. v New York State Dept. Envtl. Conservation, 58 NY2d 427, 434, 461 NYS2d 769, 772 ). The Department will not assume the truth of statements which are legal conclusions.
STATEMENT OF FACTS
Petitioners currently operate, or have previously operated, eight HMA plants throughout New York State (Walworth, Gates, Victory, Brockport, Manchester, Penfield, LeRoy and Henrietta). Petitioners assert that these facilities are air pollution source categories subject to a standard, limitation or requirement under the federal Clean Air Act's (CAA) New Source Performance Standards (NSPS) (42 U.S.C. §7411), and that as such they should be assessed Title V Operating Permit Program Fees under ECL §72-0303 and 6 NYCRR 482-2. The Petition itself sets forth the controversy, the basis for the declaratory ruling, and includes the supporting information found in the attached ten exhibits.
A review of the Department's records indicates that the Petitioners have applied for and received Air State Facility (ASF) Permits, pursuant to 6 NYCRR 201-5, for seven of these facilities. Each of these ASF permits includes conditions authorized by 6 NYCRR 201-7, which establish emissions caps for the express purpose of avoiding the requirements of Title V of the CAA, implemented by the Department through ECL §19-0311 and 6 NYCRR 201-6. Petitioner Brockport facility has an Air Facility Registration Certificate (6 NYCRR 201-4) and is capped by rule in accordance with 6 NYCRR 201-7.3, again in order to avoid the regulatory requirements of Title V.
Article 2, Title 3, of the ECL authorizes the Department to operate two different regulatory fees systems for stationary sources of air pollution. With the exception of those major stationary sources subject to ECL §72-0303 and 6 NYCRR 482-2, under ECL §72-0302 and 6 NYCRR 482-1, each person (as that term is defined in ECL §72-0301 and 6 NYCRR 200.1[bi]), required to obtain a State air quality control program permit, certificate or approval has to pay an annual fee to the Department based on the number of emission points permitted at their facility. Major stationary sources subject to the Title V Operating Program Permit Fee structure, on the other hand, are assessed a fee per ton of regulated air contaminant.
ECL §72-0303 and 6 NYCRR 482-2 provide that, beginning in 1994, all sources of regulated air contaminants that are subject to the State's Title V operating permit program, as defined in subdivision (1) of ECL §19-0311, are required pay a fee to the Department based on the actual number of tons of regulated air contaminants emitted during the reporting period. ECL §19-0311, the State's operating permit program for sources subject to the federal CAA, directs the State to create an operating permit program for sources subject to Title V of the CAA. Pursuant to subdivision (2) therein, the State is directed to promulgate all corresponding programmatic regulations. This program has been established by the Department, approved by the United States Environmental Protection Agency, and is clearly set forth in 6 NYCRR 201-6 "Title V Facility Permits". The State legislature, on the other hand, enacted the State air quality control program fees to cover all other non-Title V stationary sources. The regulatory fee structure for these facilities is prescribed by ECL §72-0302 and 6 NYCRR 482-1.
The implementation of ECL §72-0303 must be read in harmony with ECL §19-0311 and 6 NYCRR 201-6 (which governs the Department's implementation of the Title V program). That is, the assessment of regulatory fees for a particular facility should follow from the manner in which the facility is classified for the purposes of permitting under Article 19 of the ECL and 6 NYCRR 201. Facilities that are subject to and required to obtain a Title V permit are required to pay operating permit program fees pursuant to ECL §72-0303. Facilities that are not subject to Title V must pay State air quality control fees pursuant to ECL §72-0302.
Petitioners' argument that their facilities should be assessed Title V operating permit program fees simply because they are subject to an NSPS (Title 40 of the Code of Federal Regulations, Part 60, Subpart I, Standards of Performance for Hot Mix Asphalt Facilities) is incorrect. 6 NYCRR 201-6.1 (c) (1) states that any non-major stationary source subject to any federal NSPS that is promulgated prior to July 21, 1992, is exempt from having to obtain a Title V facility permit. Title 40 of the Code of Federal Regulations, Part 60, Subpart I, Standards of Performance for Hot Mix Asphalt Facilities, was promulgated in 1973, and last amended in 1989. Accordingly, there is no requirement for Petitioners to obtain a Title V Permit, and, in fact, as set forth in the Statement of Facts, Petitioners have chosen not to obtain Title V permits for any of their facilities.
Petitioners' attempt to rely on the Department's Declaratory Ruling #72-12 Independent Cement Corporation, dated June 16, 1997, to argue that their facilities should be assessed operating permit program fees regardless of whether or not they hold a Title V permit, is also incorrect. The petitioner in that case challenged the Department's authority to use 1994 data to assess State operating program fees in 1995, when the program itself had not been fully implemented in 1994. The Ruling in that case states that the "assessment of the fee is mandated by statute", and that the "Department is obliged to carry out the provisions of the statute." Thus, this Ruling is inapposite to the facts and question presented here.
For the reasons more fully set forth below, it is my determination that the Petitioners' facilities are subject to the State air quality control fee program, set forth in ECL §72-0302 and 6 NYCRR 482-1 and should have their annual fees assessed accordingly.
Dated: August 20, 2008
Alison H. Crocker
and General Counsel
New York State Department of Environmental Conservation
Deputy Commissioner & General Counsel
Office of General Counsel, 14th Floor
625 Broadway, Albany, New York 12233-1500
Phone: (518) 402 9185 FAX: (518) 402 9018
August 20, 2008
Kevin J. Brown, Esq.
Gilberti Stinziano Heintz & Smith P.C.
Attorneys and Counselors at Law
555 East Genesee Street
Syracuse, New York 13202-2159
Re: Declaratory Ruling #19-17
Dolomite Products Co., Inc. d/b/a Rochester Asphalt Materials=
and Manitou Construction Co., Inc. d/b/a Iroquois Rock Products=
Dear Mr. Brown:
Enclosed is Declaratory Ruling (#19-17) in response to your request regarding whether the Department=s Air Pollution Program Fees for your client=s Hot Mix Asphalt Plants should be assessed pursuant to New York State Environmental Conservation Law (ECL) '72-0303, and 6 NYCRR 482-2, the State=s Operating Permit Program Fees. As you will see in the enclosed Declaratory Ruling, I have concluded that their facilities are subject to the State air quality control fee program in ECL '72-0302, and 6 NYCRR 482-1.
Please call Blaise Constantakes, Program Attorney for Division of Air, at (518) 402-9211 if you have any questions concerning this ruling.
Alison H. Crocker
and General Counsel
cc: M. Crew