Compliance and Enforcement Summary - FFY 2010
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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 2010 (FFY 2010). The FFY 2010 covers the period from October 1, 2009 through September 30, 2010. 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 2010, Department staff conducted 2000 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 39 active HPVs in legal cases during FFY 2010. Of these active violations; 21 are holdovers from prior fiscal years and 18 are new cases initiated between October 1, 2009 and September 30, 2010. Of the 18 new HPV cases, four have 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 2010. As of December 2010, there were 434 facilities on the major source facility class list in AFS and there were 18 new HPV cases (4%). Most of these violations were discovered as a result of inspections. However, violations were also discovered through alternative methods (i.e., annual Title V compliance certifications, quarterly excess emission reports, and stack tests.)
Enforcement Summary of Consent Orders (FFY 2010)
During FFY 2010, the Department collected $807,975 in payable penalties for air related cases through 118 orders on consent as per data collected from AFS. A total of $317,800 in payable penalties was assessed through 13 Consent Orders from legal cases with at least one HPV. The other 105 orders on consent were issued for a total of $490,175 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 126 stack tests conducted in FFY 2010. Of the 126 stack tests recorded in AFS, four 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). 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 an investigation that DEC participated in, an additional Portland cement industry investigation. While USEPA may be continuing to investigate the company, the NYSDEC investigation has been abandoned due to lack of cooperation by the company.
Summary (FFY 2010)
- Department staff inspected over 350 major facilities
- Tracked FCEs, HPVs and corrective actions in the EPA-AIRS tracking system
- Issued 13 orders on consent for HPV violations and 105 orders for non-HPV cases
- Collected over $800,000 in payable penalties for air enforcement cases
- Identified 18 new HPVs as a result of compliance monitoring activities
- Addressed 15 active high priority violations
- Conducted more than 126 stack tests
- Received, reviewed and logged 441 Title V annual compliance certifications
- Received and reviewed over 2805 periodic monitoring reports
- Conducted 436 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 $317,800 in payable penalties through consent orders resolving 13 HPVs during FFY 2010.
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. 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 2010. Thirty nine HPV violations were actively worked on this federal fiscal year. Consent orders issued have settled 13 HPV cases.
Holdover Cases - Of the 21 HPV cases begun prior to FFY 2010, 11 have been addressed. Meaning they were either resolved with consent order (nine cases), or are being taken to hearing (two cases). At the close of the fiscal year ten holdover cases were still open and are overdue under the federal Timely and Appropriate HPV policy.
New Cases - Of the 18 new HPV violations discovered between October 1, 2009 and September 30, 2010, four were closed with none of the cases requiring further action. Of these new HPV cases initiated, 14 are not yet resolved. All of these unresolved cases are still within the 270 days allowed for addressing a case under the EPA Timely and Appropriate policy.
Over 350 inspections were conducted at 319 of the 434 major facilities in AFS during FFY 2010. 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 2010, AFS data reports 2000 inspections conducted by Department staff at 1714 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 fifteen 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 2010-2011 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 2010. At that time 169 major NYS sources were scheduled to have an FCE each year while the remaining 268 majors were scheduled for an FCE 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 2010 New York conducted 436 FCEs, of which 319 were conducted for Title V major sources and 117 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 2010 the Department has met its goal of achieving an FCE for all CMS plan sources.
The chart below illustrates the relationship between the number of major sources on the 2010 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 2010 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 January 28th, 2011 there are 434 facilities listed as active major sources. There were 437 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 2010, 126 tests were conducted and entered into AFS as of 1/31/2011. It is likely that more stack tests were performed but the information was not entered into AFS. Department staff is not required to enter all stack testing results into AFS. For that reason, staff may have deferred entering some stack test results. Seventy one of the 126 stack tests tracked in AFS during FFY 2010 were recorded as witnessed by department staff.
MACT Compliance / Initial Notification
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, public safety 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 2318 registered and permitted perchloroethylene dry cleaning establishments subject to Subpart M. A total of 289 on-site inspections were conducted during FFY 2010 at dry cleaning establishments throughout New York State.
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 2010 federal fiscal year.
|AAAAAAA - 1 Asphalt Processing
|BBBBBB - 1 Area Source
|CCCCCC - 2 Gasoline
|CCCCCCC - 1 Paints and
Allied Products Manuf.
|DDDDDDD - 2 Prepared Feeds
|HHHHHH - 1522 Paint Stripping
and Misc. Surface Coating
|M - 6 National Perchloroethylene
|VVVVVV - 4 Chemical
Manufacturing Area Source
|WWWWWW - 12 Plating and
|ZZZZ - 4 Reciprocating
|ZZZZZ - 1 Iron and Steel
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 completed review of over 1500 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 3246 Compliance Certifications and Monitoring Reports were received and logged in FFY 2010. These reports include nine HPVs and 67 non-HPV violations. Of the 441 Title V Annual Compliance Certifications that were logged into AFS during FFY 2010, three HPV violation and seventeen 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 2010.
For Those Received:
* "Certifications Due" Totals differs from the Facilities column for two reasons. 1) Title V permit renewals cause two certifications to be recorded; one with new permit information, one with old permit information. 2) Violations for non submittal of a scheduled Certification cause a second record to be created in the AFS database.
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, 3023 monitoring reports were due at 1448 facilities in FFY 2010. Of all the reports that were entered into AFS as received, 2657 out of 2805 were in compliance (95%). Six of these reports included HPV level violations.
Routine Stage I & II Inspections
Air staff performed 16 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 2010" section below, an aggregate total of $36,500 in civil penalties was issued to eight non compliant stations. The significant drop in the number of inspections and subsequent penalty amounts is due to a lack of funding for inspector travel.
Stage II Test Reporting
In the past year, 414 gasoline service stations have submitted reports indicating they have passed the pressure decay, blockage, and leak tests required by Part 230. Approximately 60 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.
Enforcement Summary of Consent Orders FFY 2010
Below is a summary of enforcement actions recorded in AFS for FFY 2010. During this time period the Department collected a total of $317,800 in payable penalties through 13 Consent Orders from High Priority Violators for air pollution cases. In aggregate, a total of $807,975 in payable penalties for stationary source related cases were assessed through 118 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 105 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, 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 2010
1) North Shore-Long Island Jewish Health Care, Inc. was issued a consent order for 6 NYCRR 227-2 installation of new equipment and modification of existing equipment without a permit and also 6 NYCRR 201-6.3(a)(4) late submission of Title V renewal application and the order included a civil penalty of $53,800.00.
2) Holcim (US) Inc. was issued a consent order for 40 CFR Part 63, Subpart LLL violating emission limits contained within the National Emissions Standards for Portland Cement Manufacturing. The facility has several exceedances of the kiln stack opacity, which is a violation of 6 NYCRR 220-4 and a violation of permit conditions 34, 96 and 97. The order included a civil penalty of $50,000.00.
3) Dunkirk Power LLC., for 6 NYCRR 227-1.4(b) was issued a consent order for excess opacity violations. The order included a civil penalty of $101,450.00.
4) A consent order was issued to the Wildlife Conservation Society, for 6 NYCRR Part 227, NOx RACT violations; and 6 NYCRR Part 201, requires the permittee to comply with all conditions of the Title V Permit. The order included a civil penalty of $25,000.00.
5) A consent order issued to Eastman Kodak Company, Inc., for 6 NYCRR Part 201, requires the facility to comply with all conditions of the Title V Permit. The order included a civil penalty of $20,000.00.