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GASP to ACHD: Revisions to Fee Schedule Necessary for Effective Air Quality Program

The Group Against Smog and Pollution (GASP) put its thoughts on Allegheny County Health Department’s proposed revisions to its air quality permit fees on the record at a public hearing Monday morning at the Clack Health Center.

GASP staff attorney Ned Mulcahy provided the following remarks:

“Good morning. I am here on behalf of the Group Against Smog and Pollution to deliver verbal comments regarding the Allegheny County Health Department’s proposed revisions of Article XXI Sections Related to Air Quality Permit Fees. GASP will also be submitting formal written comments by the end of today.

GASP believes revisions to the fee schedule are necessary for the Air Quality Program to be able to fulfill its mission of protecting air quality in Allegheny County. A lack of funding from regulated and government sources should not impede the Air Quality Program’s essential work. While GASP largely supports the proposed revisions, we believe some elements of the proposal should be examined in greater detail and revised before submitting the revisions for approval by the Board of Health and County Council.

ACHD’s proposed revisions would significantly overhaul Article XXI’s fee schedule for the Air Quality Program.  The changes include:

  • Replacing ACHD’s existing annual permit administration fee for operating permits with an annual permit maintenance fee;
  • Establishing application fees for general installation permits and operating permits; and
  • Establishing new fees covering applications for:
    • plant-wide applicability limits;
    • ambient air impact modeling done in connection with certain plan approval applications;
    • risk assessments; and
    • requests for determination.

This approach would allow ACHD to maintain a fee schedule for its Air Quality Program consistent with the fee schedule proposed this past spring by the Pennsylvania Environmental Quality Board for the Department of Environmental Protection’s Air Quality Bureau.

However, differences between ACHD’s proposal and the EQB’s proposal regarding the authorization to act, the sufficiency of the fees, and the amount of the fees should be examined and possibly revised.

As to authorization –

The Technical Support Document for the proposed revisions does not identify the legal basis for County Council’s authority to adopt these revisions, but GASP believes such authority exists. Allegheny County’s Home Rule Charter generally provides the County with the authority to exercise all powers not denied by the Pennsylvania Constitution, Pennsylvania’s statutory law, and the Home Rule Charter itself. There is no constitutional or statutory bar that would prevent County Council from making the proposed revisions to Article XXI. Even DEP’s 1998 Approval of Allegheny County’s Air Quality Program does not purport to limit Allegheny County’s power to establish fees to be charged by that Program.  

That said, ACHD should closely follow proceedings related to Pennsylvania’s Independent Regulatory Review Commission comments on the EQB’s proposed fee revisions. The IRRC comments suggest the proposed fee structure generally might not be authorized by the Pennsylvania Air Pollution Control Act. ACHD’s proposed fee revisions could be affected by the IRRC outcome.

As to sufficiency and amount –

ACHD was conspicuously silent on this point, and that is concerning. GASP believes that it is generally desirable for the fee schedule used by the Air Quality Program to be similar, if not identical, to the fee schedule used by DEP’s Bureau of Air Quality. But consistency is not the most important consideration in structuring the fee schedule.

The fees for the Air Quality Program must be set so that they raise enough revenue to fund the Program’s operations, even if that means they are not consistent with DEP’s fee schedule. In addition, the Clean Air Act requires that the fees imposed on Title V sources in Allegheny County be “sufficient to cover all reasonable (direct and indirect) costs required to develop and administer” ACHD’s Title V permit program. Similarly, because ACHD’s Air Quality Program receives little or no funding from Allegheny County itself, the fees paid by non-Title V sources in the County must also generate sufficient revenue to fund the non-Title V side of the Program.

If the proposed revisions to Article XXI’s are ultimately enacted by County Council as written, the Board of Health would be responsible for setting fees in amounts that will generate revenue sufficient to fund the operations of the Air Quality Program.  The proposed revisions do not make this requirement clear. In addition, there is no requirement in the proposed revisions for calculating and adjusting the amount necessary to operate the Air Quality Program. Given that the operations of the Program and fees to cover those operations are dependent upon each other, the proposed revisions must spell out a method for managing that relationship.

Thank you for your time.”

GASP’s senior attorney, John Baillie, also submit formal written comments. 

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