Compliance and Enforcement Summary - FFY 2009
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This report provides an overview of the Division of Air Resources enforcement activities and compliance monitoring accomplishments during Federal Fiscal Year 2009 (FFY 2009). The FFY 2009 covers the period from October 1, 2008 through September 30, 2009. The purpose of compliance monitoring and enforcement is to maintain an adequate regulatory presence so as to provide a deterrent against non-compliance. Elements of a good compliance monitoring and enforcement program include; on-site inspections, review of periodic monitoring reports, performance tests, compliance evaluations and tracking of compliance related activities. When violations are detected, an enforcement response is appropriate and may involve the assessment of penalties. The goal is to achieve compliance with all legal and regulatory requirements.
New York's enforcement program is based in the nine regional offices with support and guidance provided by the Central Office. Federal policy requires states to maintain lists of sources subject to federal Clean Air Act requirements, as well as dates and results of certain compliance activities including all High Priority Violations as defined by EPA policy. New York uses its Air Facility System (AFS) for tracking the compliance of air pollution sources, and for developing permits which provide facilities authority to operate.
A facility's compliance with permit requirements and air regulations is tracked in AFS, including; inspections, full compliance evaluations, compliance certifications, stack tests, as well as any notices of violations and subsequent enforcement cases. Compliance and enforcement activities are tracked nationally in the EPA-Aerometric Information Retrieval System (AIRS) database. This data is required to be reported to the EPA-AIRS system periodically and is downloaded from the New York AFS system into batch files which are uploaded to AIRS.
Full Compliance Evaluations
EPA's Compliance Monitoring Strategy (CMS) of April 2001 set minimum standards for state air enforcement programs. The CMS policy requires state agencies to submit a CMS Plan once every two years. Each state must conduct a comprehensive evaluation of the compliance status for each facility targeted on its CMS plan. This "full compliance evaluation" (FCE) must include: a review of all required reports, monitoring data (continuous emission monitors, excess emission reports, and others), Title V annual compliance certifications, appropriate inspections and any other reports required by the permit. Emphasis has been placed on Title V major sources and a limited subset of the largest synthetic minor sources, called SM-80s. SM-80s are facilities with permissible emissions from 80 to 99% of the major source thresholds.
On site inspections are one of the main tools used in maintaining the Department's oversight of facilities compliance with air pollution control regulations. Inspections are also an important component of a full compliance evaluation. During FFY 2009, Department staff conducted over 1600 inspections of air pollution sources. Particular focus was given to inspecting major sources (facilities with actual or permitted emissions greater than Title V thresholds.)
EPA High Priority Violations
An integral part of New York's air pollution control program is the appropriate enforcement of state and federal regulations. Under the EPA-High Priority Violation (HPV) policy, the focus is on the most important and environmentally significant violations at major "Title V" sources of air pollution. The policy contains threshold criteria to determine whether or not a violation is an HPV and sets guidance for addressing cases in a timely and appropriate manner. High priority violations should be addressed within 270 days; however the more complicated cases often take longer than 270 days to resolve.
Penalties provide incentive to stay in compliance and take away some of the economic benefit that a firm may have enjoyed by not complying with state and federal regulations. There were 58 active HPVs in legal cases during FFY 2009. Of these active violations; 27 are holdovers from prior fiscal years and 31 are new cases initiated between October 1, 2008 and September 30, 2009. Of the 31 new HPV cases, 21 have already been addressed with consent orders.
One comparison of interest is the number of major sources in the state vs. the number of HPVs initiated in legal cases during FFY 2009. As of December 2009, there were 437 facilities on the major source facility class list in AFS and there were 31 new HPV cases (7%). Most of these violations were discovered as a result of inspections. Many violations were discovered through alternative methods (i.e., annual Title V compliance certifications, quarterly excess emission reports, and stack tests.)
Enforcement Summary of Consent Orders (FFY 2009)
During FFY 2009, the Department collected $1.79 million in payable penalties for air related cases through 197 orders on consent as per data collected from AFS. A total of $794,060 in payable penalties was assessed through 29 Consent Orders from legal cases with at least one HPV. The other 168 orders on consent were issued for a total of $999,095 in penalties. These non-HPV cases were generally at non-major sources and were for violations such as; dry cleaner requirements in Part 232, permit condition violations and failure to obtain registrations or permits.
Stack Test Program
One of the most effective ways of determining a facility's compliance with emission limits as well as actual source emissions is to conduct a stack test. There were more than 129 stack tests conducted in FFY 2009. Of the 129 stack tests recorded in AFS, three had violations.
Investigations are defined by the US EPA as a more resource intensive and in-depth assessment of a particular issue usually focused on a portion of a facility. They are usually initiated based on information discovered during an inspection or as the result of a targeted industry, regulatory or statutory initiative. One multi-state investigation initiated by the EPA in FFY 2004 focused on Lafarge North America (the Ravena plant in NYS) and was still ongoing at the end of FFY 2009. A proposed Consent Decree was lodged on January 21, 2010 and published in the Federal Register on February 5, 2010. In FFY 2009 EPA also initiated and DEC is participating in, an additional Portland cement industry investigation.
Summary (FFY 2009)
- Department staff inspected over 300 major facilities
- Tracked FCEs, HPVs and corrective actions in the EPA-AIRS tracking system
- Issued 29 orders on consent for 39 HPV violations and 168 orders for non-HPV cases
- Collected over $1.79 million in payable penalties for air enforcement cases
- Identified 31 new HPVs as a result of compliance monitoring activities
- Addressed 43 active high priority violations
- Conducted more than 129 stack tests
- Received, reviewed and logged more than 434 Title V annual compliance certifications
- Received and reviewed over 2166 periodic monitoring reports
- Conducted 446 Full Compliance Evaluations (FCEs)
EPA High Priority Violations - An Overview
An integral part of New York's air pollution control program is appropriate enforcement of state and federal regulations at major sources of air pollution. Working under the EPA's HPV policy, the focus is on the most important and environmentally significant violations. The policy contains threshold criteria to determine whether or not a violation meets HPV status. It also sets guidance for addressing cases in a timely and appropriate manner. High priority violations should be addressed within 270 days, however, more involved cases take longer to resolve. Often these more difficult cases involve complicated environmental laws, in-depth investigation, and extensive negotiations. Efforts to pursue these cases are frequently offset by significant reductions in pollutants from facilities that take measures to come into compliance. This also helps maintain a level playing field between those facilities that have gone to the expense of complying with air pollution laws and those that have disregarded air regulations.
Penalties provide incentive for facilities to stay in compliance and are intended to remove economic benefit that a firm may have obtained while in non-compliance. AFS reports show the Department collected a total of $.79 million in payable penalties through 29 consent orders for 39 HPVs during FFY 2009.
The Department's objective is to address all HPV cases in a timely manner. Resolution of HPV cases often requires a significant amount of time in both the Division of Air Resources professional staff as well as legal resources staff. There is an existing backlog of cases that have gone beyond the EPA time frames, that backlog was reduced during this reporting period. During FFY 2009, a total of 13 more cases were addressed than new cases initiated. The Department tracks both HPV and non-HPV enforcement cases in the AFS Compliance Module. As part of the delegation agreements with the federal government, states are required to provide HPV data for the EPA-AIRS data system. HPV cases from AFS are batch loaded to the EPA-AIRS system periodically, satisfying this portion of the federal reporting requirements.
The table above shows High Priority case status for FFY 2009. Fifty eight HPV violations were actively worked on this federal fiscal year. Twenty nine consent orders have been issued, settling 39 individual HPV violations.
Holdover Cases - Of the 27 HPV cases begun prior to FFY 2009, 23 have been addressed. Meaning they were either resolved with consent order (18 cases), or are being taken to hearing (5 cases). At the close of the fiscal year four holdover cases were still open and are overdue under the federal Timely and Appropriate HPV policy.
New Cases - Of the 31 new HPV violations discovered between October 1, 2008 and September 30, 2009, 21 were closed with none of the cases requiring further action. Of these new HPV cases initiated, ten are not yet resolved. Nine of these unresolved cases are still within the 270 days allowed for addressing a case under the EPA Timely and Appropriate policy.
Over 330 inspections were conducted at 300 of the 437 major facilities in AFS during FFY 2009. Many violations were discovered as a result of these inspections. However, violations were also discovered through compliance monitoring reports and annual certifications.
On site inspections are one of the main tools used in maintaining the Department's oversight of facilities compliance with air pollution control regulations. During FFY 2009, AFS reports 1641 inspections conducted by Department staff at 1370 facilities and other potential air pollution source locations. Particular focus is given to inspecting major sources (facilities with actual or permitted emissions above Title V thresholds). In addition, over eleven hundred smaller sources were inspected including synthetic minor facilities with emission caps and many downstate dry cleaning facilities.
State inspections are entered into the AFS system by the regional inspectors. These inspection reports include details regarding; compliance status by regulation or permit condition cited in the facility permit, operating status and any specific observations made by the regional inspector. This presence in the field helps ensure compliance with state and federal air pollution regulations. Violations discovered through these inspections are followed up with enforcement actions.
A Major- Actual or potential emissions are above the applicable major source thresholds
SM-80 Synthetic Minor- With emissions capped between 80% and 99% of major source thresholds provided that the facility complies with federally enforceable regulations or permit limitations
SM Synthetic Minor- Facilities with emissions below major source thresholds provided the facility complies with federally enforceable regulations or permit limitations and excluding the SM-80 facilities
B Natural Minor- Potential emissions below all applicable major source thresholds
UNK Facility not classified or Classification not determined
New York considers inspections to be an important tool. In order to focus limited resources where they can do the most good for the environment, major sources of air pollution are targeted for inspection under the CMS policy at least once every two years. The vast majority of air pollution sources are non-major sources. The table below illustrates the regional distribution of total 'routine inspections' at major sources, as compared to the number of routine inspections achieved at non-major sources during the FFY.
EPA Compliance Monitoring Strategy
EPA's Compliance Monitoring Strategy (CMS) intends to provide a national consistency for stationary source compliance monitoring while allowing states flexibility in addressing air pollution program compliance. States submit a CMS plan to EPA biennially for discussion and approval. EPA periodically evaluates each State's compliance monitoring program. The CMS policy focuses on federally enforceable requirements at Title V and SM-80 sources through three categories of compliance monitoring: Full Compliance Evaluation, Partial Compliance Evaluation, and Investigations.
Sources are tracked as "mega," "major" and "80% synthetic minor" (SM-80) for CMS purposes. A "mega" site is one that is so large in the number and complexity of emission sources that a full evaluation of the facility's compliance status cannot be reasonably done every two years. Mega sources can be put on a three year schedule for completion of a full compliance evaluation. New York has one facility currently categorized as a mega site. "Major" sources are those facilities with emissions permitted at or above Title V thresholds. An "SM-80" is a facility that is capped out of Title V with a permit that allows emissions of 80% to 99% of Title V thresholds. Such a source should be evaluated at least once every five years and major sources should have a full compliance evaluation at least once every two years according to the EPA policy.
The CMS policy recognizes that there is a variety of methods available to agencies to determine the compliance of a source. It requires agencies to review varying sources of information in order to conduct a comprehensive evaluation of a facility's compliance status. Inspections are only a part of the evaluation process. A "Full Compliance Evaluation" (FCE) must include: a review of all required reports, monitoring data, stack tests, inspections and any other reporting requirements in a facility's permit.
The 2008-2009 CMS plan, which exceeds the minimum requirements in the CMS policy that the 'state conduct an FCE at each major source once every two years', was submitted to EPA in 2008. Approximately 172 major NYS sources were scheduled to have an FCE each year while the remaining 265 majors will have an FCE conducted once every two years. The Department has determined that an FCE should be conducted every year at certain facilities where the compliance history or operations warrant annual review.
AFS data shows that in Federal Fiscal Year 2009 New York conducted 446 FCEs, of which 298 were conducted for Title V major sources and 118 for SM-80 sources. The current CMS plan commits the Department to conduct an FCE for all SM-80 facilities within a five year period. In FFY 2009 the Department has met its goal of achieving an FCE for all sources on the CMS plan.
The chart below illustrates the relationship between the number of major sources on the 2009 FFY CMS plan, the total number of major sources, and the number of FCEs conducted at these facilities. The Department completed more FCEs at major sources during FFY 2009 than were on the CMS plan.
Facility Compliance Tracking in AFS
The Department uses the AFS computer system to issue permits and track facilities with sources of air pollution. One of the tracking functions in AFS is the facility classification list. The list includes all operating major sources. In addition, the list has all synthetic minor and natural minor sources that have permits or registrations issued from AFS. The classification list is routinely maintained by both central office and regional staff. It comprises the most accurate list of facilities, by classification that are subject to permitting in the state. This table shows the breakdown of facility classifications per region.
A Major- Actual or potential emissions are above the applicable major source thresholds
SM-80 Emissions below major source thresholds if the facility complies with federally enforceable regulations or permit limitations and the permitted limits are between 80 and 99% of the major source threshold
SM Synthetic Minor- Emissions below major source thresholds if the facility complies with federally enforceable regulations or permit limitations and the permitted limits are less than 80% of the major source threshold
B Natural Minor- Potential emissions below all applicable major source thresholds
The number of major sources continues to drop. As of December 1st, 2009 there are 437 facilities listed as active major sources. There were 440 major sources last year. Some facilities have closed and others have chosen to limit emissions below Title V thresholds.
Stack Test Program
One of the most effective ways of determining actual emissions from a source and the ability of the source to comply with emissions limits is to conduct a stack test. To help ensure stack testing is done in accordance with approved protocols, Department staff spend many days in the field witnessing stack tests. Under the current EPA Compliance Monitoring Strategy, stack testing has been given a higher priority, especially for major sources where there is no other reliable method of determining compliance. Many Title V permits include a requirement that a source conduct a stack test at least once during the term of the permit (five years).
In FFY 2009, 129 tests were conducted and entered into AFS as of 1/29/2010. It is likely that many other stack tests were performed but the information was not entered into AFS because the process for entering the data can be cumbersome when a large number of contaminants have been tested. For that reason, staff has deferred entering some of the data in AFS. Ninety three of the 129 stack tests tracked in AFS during FFY 2009 were recorded as witnessed by department staff.
MACT Compliance / Initial Notifications
The National Emissions Standards for Hazardous Air Pollutants (NESHAPs) are air quality standards, issued under Section 112 of the Clean Air Act, which regulate 188 Hazardous Air Pollutants (HAPs) from industrial sources. These industry-based NESHAPs are also called Maximum Achievable Control Technology standards (MACT). The MACT standards are designed to reduce HAP emissions to a maximum achievable degree, taking into consideration the cost of reductions and other factors.
MACT certifications, initial notifications and conditions are tracked in AFS with the ability to search the permit and minor source registration databases by regulatory citation. AFS reports 2170 registered perchloroethylene dry cleaning establishments subject to Subpart M. A total of 276 on-site inspections were conducted during FFY 2009 at dry cleaning establishments throughout New York State. In addition, a total of 17 violations of other MACT subparts were logged in AFS.
Initial Notifications are required to be submitted for facilities that have become subject to MACT rules. The table below lists the total number of Initial Notifications received, reviewed, and entered into AFS for each MACT source during the 2009 federal fiscal year.
|BBBBBB - 1 Area Source
|DDDDD - 1 Boilers
and Process Heaters
|HHHHH - 76 Misc.
Organic Coating Prod.
|M - 12 National Perchloroethylene
Air Emission Standards
|OOOOOO - 1 Flexible
Polyurethane Foam Production
|SSSSSS - 1 Glass
Manufacturing Area Source
|T - 1 Halogenated
|WWWWW - 3 Hospital Ethylene
|WWWWWW - 13 Plating and
|XXXXXX - 2 Metal Fabrication
|ZZZZZ - 3 Iron and
DEC staff are in the process of compiling the number of gasoline distribution facilities (GDFs) and automotive repair shops that submitted initial notifications for 40 CFR 63 Subpart CCCCCC (6C) and Subpart HHHHHH (6H). GDFs are not generally required to register with the Division of Air Resources. It takes significant additional resources to ensure submitted information for the thousands of GDFs in the state meets DEC data quality standards. Therefore facilities are entered into AFS when a SIP or MACT violation is documented, in order to meet EPA's minimum data requirements. DEC staff have not yet reviewed the thousand or so initial notifications for Subpart 6H to determine which facilities are subject and which have claimed non-applicability due to using HAP-free coatings and solvents. Body shops in the New York City and Lower Orange County Metropolitan Areas have long been required to be registered with DEC. Only larger body shops are required to register upstate, so DEC faces the same obstacles as with the GDFs.
Title V Monitoring Reports and Compliance Certifications
All Title V permits issued in New York State require subject facilities to submit semi-annual monitoring reports and annual compliance certifications. The semi-annual monitoring reports contain a summary of compliance monitoring activities to be conducted by the facility. The facility operators must describe the monitoring status and report any deviations from permit limits. Report templates and instructions have been developed by the Department and have been distributed to all holders of Title V permits in the state. Annual Compliance Certifications include an in-depth assessment of a facilities compliance with permit requirements. Facilities must certify compliance with all conditions of their Title V permit.
All of the semi-annual monitoring reports and annual compliance certifications received are reviewed by regional staff to determine if the reporting requirements have been met fully and if the facility has complied with all applicable requirements. It is considered an HPV if a Title V facility fails to file its annual compliance certification. In the past, many facilities were cited for not submitting their certification on time. This is no longer a significant problem.
Reports are tracked in the AFS database. A total of 2600 Compliance Certifications and Monitoring Reports were received and logged in FFY 2009. These reports include four HPVs and 62 non-HPV violations. Of the 434 Title V Annual Compliance Certifications that were logged into AFS during FFY 2009, one HPV violation and sixteen non-HPV violations were documented. In accordance with federal policy, the Department reports data regarding each Title V certification received to the AIRS database. This includes: The date the report was due, the date it was reviewed and the overall compliance status.
The following table presents a summary of the Annual Certifications entered into AFS by each of the Department's nine regions during FFY 2009.
For Those Received:
Periodic Compliance Reporting
Other than the Title V semi-annual and annual reporting requirements discussed above, there are many other compliance reports that regulated facilities must submit periodically. These could be monthly, quarterly, semi-annual or annual depending on the applicable regulations. For example, many Title V and non-Title V facilities are required to submit excess emissions reports on a quarterly basis. These periodic reports are reviewed by the DEC Regional offices. The Central Office develops statewide guidance and provides an auditing function to assist the regions in determining compliance.
The Department's AFS system has the capability of tracking all monitoring reports required in issued permits. Regulatory requirements are set out in monitoring conditions in the Title V and state facility permits which specify the appropriate schedule for reporting. While all Title V annual compliance certifications must be tracked in AIRS, there is no requirement that other periodic reports be reported to EPA in AIRS. The decision on whether to track these reports in AFS is made by the regional managers. Statistics are incomplete because of the flexibility allowed for the staff to track the information. Regardless, 2371 monitoring reports were due at 456 facilities in FFY 2009. Of all the reports that were entered into AFS as received, 2012 out of 2166 were in compliance (93%). Only three of these reports included HPV level violations.
Routine Stage I & II Inspections
Air staff performed 238 inspections of Part 230 Stage I and II vapor recovery systems in the downstate NY Metro Area. Non compliant issues ranged from failure to maintain equipment to dispensing gasoline without having the necessary vapor recovery equipment installed. Facilities that did not comply with the regulation were ordered to lock out any pumps that were in violation. The facilities which had not installed the appropriate Stage I/II vapor recovery equipment were given a time period of which to come into compliance or cease dispensing fuel. If the owner/operator refused to adhere to the conditions and terms of the order, Environmental Conservation Officer's were notified and assisted the inspectors in enforcing the regulation. In addition to the "Enforcement Summary of Consent Orders FFY 2009" section below, an aggregate total of $202,000 in civil penalties was issued to 58 non compliant stations.
Stage II Test Reporting
In the past year, 500 gasoline service stations have submitted reports indicating they have passed the pressure decay, blockage, and leak tests required by Part 230. Approximately 40 test reports were received that indicate failure of one or multiple tests required in Part 230. All service stations in the New York City Metropolitan Area, Westchester, Rockland, Nassau, Suffolk and Lower Orange Counties are required to submit the compliance testing results every five years. DEC has started to receive test reports from GDF's that are required to test every three years to comply with subpart 6c.
In November 2006, the Department revised 6 NYCRR Part 205 - the Architectural and Industrial Maintenance (AIM) Coatings regulation - to ensure the VOC emission reductions necessary to fulfill the State's obligations for ozone attainment. To recapture the VOC emission reductions being lost the revisions included: (1) removing the Small Manufacturer Exemption (SME) provision one year early from the 20 small AIM Coatings manufacturers it was granted to, and (2) implementing a "sell-through" end date for compliant coatings.
In FFY 2007, about 125 inspections (i.e., wholesale, retail stores, etc.) were conducted. From these inspections, 91 stores were found to have violations of Part 205. Notices of Violation (NOV) and case referrals were issued early in FFY 2008 for the previous year's violations. By the close of FFY 2009, the Department had executed a total of 73 signed consent orders (CO) with penalties amounting to $74,440.00 including those from the previous FFY. Several violations have been reduced to warnings due to the small number of non-compliant coating containers.
Enforcement Summary of Consent Orders FFY 2009
Below is a summary of enforcement actions during FFY 2009. During this time period the Department collected a total of $794,060 in payable penalties through 29 Consent Orders from High Priority Violators for air pollution cases. In aggregate, a total of $1,793,155 in payable penalties for stationary source related cases were assessed through 184 orders on consent.
HPV & non-HPV Order Summary
The table below shows the number of consent orders issued and the total payable penalties entered into AFS. It is broken down by HPV consent orders and non-HPV consent orders.
Reasons some of the of the 168 orders were not considered HPV level include: the facility has emissions below the major threshold, the related regulation has not been approved into the State Implementation Plan or the violations are not gross as defined by the general HPV criteria or the High Priority Violation Matrix.
Other orders include violations of regulations such as; dry cleaning record keeping and monitoring required in Part 232, Stage II requirements for downstate gasoline stations in Part 230, Fuel Consumption and Use, Sulfur in Fuel Limitations in Part 225, Surface Coating Processes in violation of Part 228, and the Acid Deposition Reduction rules in Parts 237 and 238.
A number of orders addressed Section 227, Stationary Combustion Installation and Smoke emission limits. The greatest number of consent orders involved Part 201 permitting violations.
Major Facility Cases for FFY 2009
1) A consent order was issued to New York Power Authority (NYPA) for Title V permit conditions, which require timely submission of Compliance Certification annual and Semi-annual reports to the Department. NYPA failed to submit these reports for six of their facilities. Respondent was assessed a total civil penalty in the amount of $105,000.
2) A consent order was issued to Stewart EFI New York, LLC for Title V permit violations, pursuant to 6NYCRR Part 200 and Part 201, requiring owners and/or operators to apply for a permit for emissions sources at their facility. The initial performance test results indicate that the Ultronix Degreasing unit's emission rates did not meet the standards set forth in 40 CFR 63.463(C) (2) (ii). Respondent was assessed a total civil penalty in the amount of $206,160.
3) A consent order was issued to Dayton Beach Park #1 Corporation for Title V permit conditions, which require timely submission of Compliance Certification annual reports to the Department, failure to perform required emissions sources tests at the facilities and failure to conduct emission test for Particulate Matter (PM) for its emission sources during the term of its permit, 6NYCRR Parts 227-1.2(a)(1). Respondent was assessed a total civil penalty in the amount of $67,500.
4) A consent order was issued to Riverside Park Community, LLC. For a failure to timely submit two annual reports; four Semi-Annual Monitoring reports; one Annual Monitoring report and to conduct emissions testing of facility boilers which is a violation of permit requirements and 6NYCRR Part 201. The order included a civil penalty in the amount of $72,500.00.
5) A consent order was issued to Hoosier Magnetic, Inc. for a failure to obtain permits; 6NYCRR 201-5 (Air State Facility Permit) or 6NYCRR 201-6 (Title V Permits), and for a failure to maintain records and reports to substantiate eligibility for a minor source registration. Respondent obligated to pay a civil penalty of $96,600.