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DEE-5: Air Pollution Control Enforcement Policy - Appendix II

Gasoline Vapor Recovery Systems - 6 NYCRR Part 230

I. Purpose

The purpose of this enforcement guidance memorandum is to establish the Department's enforcement strategy for violations of vapor recovery system requirements under ECL Article 19 and 6 NYCRR Part 230. In particular, the guidance contains penalty matrices establishing minimum payable penalties for particular types of violations. the Department's objectives in creating the penalty structure are to ensure that violators do not obtain any economic benefit from non-compliance and to impose sufficiently high penalties to encourage companies to comply with requirements sooner rather than Later. To realize this latter objective this guidance recommends that source owners that are cooperative and enter into an Order and come into compliance relatively quickly, receive smaller penalties than companies that are recalcitrant, delay attaining compliance, or attempt to evade the regulatory process.

II. Background

Part 230 regulates gasoline dispensing sites ad transportation vehicles for the purpose of controlling volatile organic compound (VOC) vapors associated with the unloading and dispensing of gasoline. Stage I and II vapor recovery systems for gasoline stations are a critical component of New York State's effort to control air pollution in the New York City Metropolitan area. Patrol of gasoline vapor is necessary to bring New York into compliance with the national ambient air quality standards for ozone. The use of Stage I and II systems is a strategy contained in the State Implementation Plan (SIP) for the attainment and maintenance of the standards. Vapor recovery systems also benefit the health of New Yorkers when fueling vehicles by reducing their exposure to VOCs, including benzene.

Both Stage I and II vapor recovery systems result in savings in terms of gasoline recovered by the vapor recovery systems. the Department of Environmental Conservation (DEC) estimates that approximately 6,500,000 gallons of gasoline will be saved per year with full implementation of the Stages I and II vapor recovery system program in the Metropolitan area. This savings is approximately equivalent to the amount of gasoline sold each year by six large gasoline stations.

Regulatory requirements affecting gasoline stations differ based on: installed tankage, annual throughput and the age of the tankage. Part 230 contains the requirements for this program.

This document contains two matrices which summarize the regulatory requirements:

  • Matrix 1 lists the deadlines for gasoline stations to install Stage I and II systems in the five boroughs of New York City.
  • Matrix 2 lists these requirements for stations located in Nassau, Rockland, Suffolk and Westchester Counties.
Matrix 1: Guidance Summary of Part 230 Vapor Control System Requirements for Gasoline Dispensing Sites Within the City of New York's Five Boroughs
Gasoline Tanks Size (gallons) Tank Installation Date Annual Gasoline Throughput for Facility (gallons)
120,000 or Less Over 120,000 But Not Over 250,000 Over 250,000 But Less Than 500,000 500,000 or Greater
<250 All years None None None None
<2,000 Before 1/1/70 None Stage I &II by 5/1/99 Stage I & II by 5/1/99 Stage I & II by 5/1/99
250 or Greater 1/1/70 to 1/1/79 None Stage I by 10/1/82, Stage II by 4/15/96 Stage I by 10/1/82, Stage II by 7/1/89 Stage I by 10/1/82, Stage II by 7/1/88
250 or Greater 1/02/79 to 6/27/87 Stage I when installed includes installation of new tanks or substantial modification of existing tanks Stage I when installed, Stage II by 4/15/96 Stage I when installed, Stage II by 7/1/89 Stage I when installed, Stage II by 7/1/88
250 or Greater After 6/27/87 Stage I & II when installed Stage I & II when installed Stage I & II when installed Stage I & II when installed

Matrix 2: Guidance Summary of Part 230 Vapor Control System

Requirements for Gasoline Dispensing Sites within the Counties of Nassau, Rockland, Suffolk and Westchester

Requirements for Gasoline Dispensing Sites within the Counties of Nassau, Rockland, Suffolk and Westchester
Gasoline Tanks Size (gallons) Tank Installation Date Annual Gasoline Throughput for Facility (gallons)
120,000 or Less Over 120,000 But Not Over 250,000 Over 250,000 But Less Than 500,000 500,000 or Greater
<250 All years None None None None
<2,000 Before 1/02/79 Submerged fill Stage I by 10/1/82 Stage I by 10/1/82, Stage II by 7/1/89 Stage I by 10/1/82, Stage II by 7/1/88
250 or Greater 1/02/79 to 6/27/87 Stage I when installed Stage I when installed Stage I when installed, Stage II by 7/1/89 Stage I when installed, Stage II by 7/1/88
250 or Greater After 6/27/87 Stage I & II when installed Stage I & II when installed Stage I & II when installed Stage I & II when installed

III. Enforcement Responses to Violations

The elements of DEC's enforcement program (which are discussed below) are designed to encourage rapid compliance. A specific enforcement plan will be developed by the Division of Air Resources and the Office of General Counsel to implement the enforcement program. That program will involve use of administrative orders, uniform appearance tickets, notices of violations, orders with compliance schedules and penalties.

  1. Notice of Compliance Determination/Notice of Violation [NOCD/NOV]

    NOCD/NOV (Form 76-12-8) is often the first written notice a source owner/operator receives concerning a violation. The source, of course, has an independent responsibility to comply with the law, even absent notice from the DEC. However, it is always appropriate for staff to issue an NOCD/NOV when a violation is detected. An NOCD with the "Notice of Violation" box checked should be served on any non-complying station owner or operator within five business days of detection by authorized Division of Air Resources staff. If a subsequent order is obtained, the date of service of NOCD/NOV shall be the date from which compliance schedules are drawn (respondents who engage in protracted negotiations or litigation over penalties should not be rewarded with additional time to come into compliance).

  2. Administrative Orders [A.O.]

    In the main, administrative orders issued pursuant to the State Administrative Procedure Act and Article 71 of the ECL, both on consent and after adjudication, will be used to carry out this enforcement program).
  3. Uniform Appearance Tickets [UAT]

    UAT's and criminal information may be utilized in the enforcement of this program in jurisdictions where this is feasible. Administrative settlements of the criminal actions should be in accord with this guidance.

  4. Compliance Schedules

    Compliance schedules are an essential element of the orders in this enforcement program. Compliance schedules are an exercise of Enforcement discretion to temporarily tolerate non-compliance with a statute while a respondent undertakes expeditious action to came into compliance. The schedule must be structured to lead to full Statutory compliance in the face of contractor availability, and other foreseeable circumstances which DEC, in the exercise of its enforcement discretion, may take into account. Each schedule must include DEC monitored milestone dates and stipulated or liquidated penalties for failure by the respect to follow the schedule.

    Obviously, a respondent can voluntarily abate any violation by ceasing operation of the facility that lacks control equipment. Hence, the ability of a violator to pay a penalty and operate in non-compliance of the law shall be a limited option. Consequently, each order must contain an explicit provision that requires the respondent to lock and seal from operation any nozzle that is in non-compliance with all requirements of Part 230 no later than on the 15th day after the last final Compliance deadline in the compliance schedule. Furthermore, each order should include a separate penalty amount for failure to obey the terms of the order. The Division of Environmental Enforcement will provide standard form language for use in compliance schedules and orders. Regional staff should consult with the Division of Environmental Enforcement when it is necessary to vary the language of the standard forms significantly.

    Compliance Schedule Elements

    Not all orders will have compliance scales, since same orders will be issued to address liabilities for past violations. However, for those respondents that will require additional time to come into compliance with Part 230, the elements listed below should be inserted into each schedule. Staff may vary schedules as appropriate to provide the most efficient means to monitor progress and penalize non-compliance.

    Compliance Schedule Requirements
    Item Event / Milestone Date / Deadline
    1 Pay fixed penalty for approximately 15 days past and projected periods of non-compliance Approximately 15 days after execution of the Order
    2 Respondent to submit approvable application for permit to construct Stage I/II facilities Date should be approximately 3 weeks after issuance of NOCD/NOV
    3 Initiate construction of Stage I/II facilities Date should be approximately 30 days after issuance of NOCD/NOV
    4 Complete construction of Stage I/II facilities Date 3 plus approximately 30 days
    5 Obtain certificate to operate [C.O.] or have provided DEC with all requisite forms and data required to issue a C.O. Date 4 plus approximately 15 days
    6 Be in full compliance with ECL Article 19 and Part 230 or lock and seal each non-complying nozzle Date 5 plus 15 days
  5. Penalty Responses - [Always subject to statutory maximums]

    This section of the guidance contains three matrices which specify minimum penalty responses for certain types of violations:

    • Matrix 3 and Matrix 4 utilize the categorization of regulatory requirements and stations to display penalty responses for failure to install or retrofit required equipment on time.
    • Matrix 5 contains enforcement responses for operation violations.

      ECL Sections 71-2103 and 71-2105 provide for civil and criminal penalties. The civil penalty section provides for a maximum penalty in the amount of $10,000 per violation plus a $500 per day penalty for each day the violation continues. me criminal penalty provision provides for a penalty of up to $10,000 and up to one year of imprisonment for each violation. Each day on which a criminal violation occurs constitutes a separate violation. In the exercise of the Department's prosecutorial discretion and in order to fairly and efficiently administer this program the following guidance an minimum penalties for settlements under this program is given. It cannot be stressed enough that these are minimum penalties subject to increase for circumstances in which the violator is recalcitrant or realizing economic benefits significantly in excess of those recouped through the minimum penalties.

      The Part 230 enforcement order should address four types of penalty concerns:

    Matrix 3: Guidance for Part 230 Minimum "Fixed" Payable penalties for the Failure of Gasoline Dispensing Sites to Have Constructed: Submerged Fill, or Stage I and Stage II Systems by the regulated Deadlines [Exclusive of Stage II Retrofit requirements]

    Annual Gasoline Throughput For Facilities With Tanks Of At Least 250 Gallons In Size (gallons)
    Tank Installation Date 120,000 or less Over 120,000 But not Over 250,000 Over 250,000 But Less Than 500,000 500,000 or Greater
    Penalties for Violations of Requirements for New York City (5 Boroughs)
    1/1/70 to 1/1/79 Not Applicable Stage I by 10/1/82 [$10,000] Stage I by 10/1/82 [$15,000] Stage I by 10/1/82 [$20,000]
    1/02/79 to 6/27/87 Stage I when installed [$5,000] Stage I when installed [$10,000] Stage I when installed [$15,000] Stage I when installed [$20,000]
    After 6/27/87 Stage I&II when installed [$2,500] Stage I&II when installed [$5,000] Stage I&II when installed [$10,000] Stage I&II when installed [$15,000]
    Penalties for violations of requirements for Nassau, Rockland, Suffolk and Westchester Counties
    Before 1/02/79 Submerged fill [$2,500] Stage I by 10/1/82 [$10,000] Stage I by 10/1/82 [$15,000] Stage I by 10/1/82 [$20,000]
    1/02/79 to 6/27/87 Stage I when installed [$5,000] Stage I when installed [$10,000] Stage I when installed [$15,000] Stage I when installed [$20,000]
    After 6/27/87 Stage I&II when installed [$2,500] Stage I&II when installed [$10,000] Stage I&II when installed [$10,000] Stage I&II when installed [$15,000]
    • This Matrix does not apply to stations required to retrofit Stage II systems, commencing on 7/1/88 in New York City or Nassau, Rockland, Suffolk and Westchester Counties. See Matrix 4.
    • Payable dollar amounts are stated in brackets. The bracketed amount is the minimum payable penalty to be collected for violations detected and subject to Administrative Order between May 1, 1988 and July 1, 1989.
    • For violation put under order after July 1, 1989, the minimum penalty shall be double the bracketed amount in this Matrix.
    • All orders assessing penalties must include a per nozzle stipulated/liquidated penalty and an ultimate compliance date through use of control equipment or sealing.
    • ECL Section 71-2103 provides civil penalty liability of up to $10,000 per violation plus an additional penalty not to exceed $500 for each day during which a violation continues.

    Matrix 4: Guidance for Part 230 Minimum "Fixed" Payabale penalty for the Failure of Gasoline Dispensing Sites to Retrofit Stage II Systems: Penalties Expressed on a Per Nozzle Per Month of violation

    Annual Gasoline Throughput For Facilities With Tanks Of At Least 250 Gallons In Size (gallons)
    Tank Installation Date 120,000 or less Over 120,000 but not over 250,000 Over 250,000 but less than 500,000 500,000 or greater
    Requirements for New York City (5 Boroughs)
    1/1/70 to 1/1/79 Not Applicable Not Applicable Stage II by 7/1/89
    [$25] 7/1/89 - 3/31/90
    [$100] post 4/1/90
    Stage II by 7/1/88
    [$25] 7/1/88 - 3/31/89
    [$100] post 4/1/89
    1/02/79 to 6/27/87 Not Applicable Not Applicable Stage II by 7/1/89
    [$25] 7/1/89 - 3/31/90
    [$100] post 4/1/90
    Stage II by 7/1/88
    [$25] 7/1/88 - 3/31/90
    [$100] post 4/1/89
    Requirements for Nassau, Rockland, Suffolk and Westchester Counties
    Before 1/02/79 Not Applicable Not Applicable Stage II by 7/1/89
    [$25] 7/1/89 - 3/31/90
    [$100] post 4/1/90
    Stage II by 7/1/88
    [$25] 7/1/88 - 3/1/89
    [$100] post 4/1/89
    1/02/79 to 6/27/87 Not Applicable Not Applicable Stage II by 7/1/89
    [$25] 7/1/89 - 3/31/90
    [$100] post 4/1/90
    Stage II by 7/1/88
    [$25] 7/1/88 - 3/31/89
    [$100] post 4/1/89
    • This guidance applies to:
      1. Stations with tanks equal to or greater than 250 gallons in size;
      2. Stations where tanks were installed either between 1/1/70 through 1/1/79 or ½/79 through 6/27/87;
      3. Stations with annual throughput over 250,000 gallons of gasoline.
    • The penalties calculated must include a separate minimum penalty of $1,000 per station for any violator who failed to obtain a required permit to construct by July 1, of the year in which required facilities must be installed.
    • Deadlines for Stage II retrofitting are in bold.
    • The minimum fixed penalty calculation:
      • The "per nozzle per month" payable dollar amounts are stated in brackets; e.g. [$100]. There are 3 separate steps required to compute the initial sum for a minimum penalty.

        The first step is to calculate sub-totals using the number of "nozzle-months" of projected non-compliance. Use a per Nozzle penalty rate that is dependent on what period of time the station comes into compliance.

        The second step is to multiply the sum obtained in the first step by a multiplier dependent on what period of time the station owner/operator comes under Order.

        The multiplier is 1 if the Order is signed by 9/30. The multiplier is 2 if the Order is signed after 10/1.

        The year of the signing depends on whether the Stage II was due on 7/1/88 or 7/1/89.

        The third step is to consider a penalty reduction factor based on the number of stations the owner/operator has in compliance on July 1, 1988 (or July 1, 1989 as the case may be). The reduction factor is a fraction composed of the number of stations in non-compliance divided by the total number of stations subject to Stage II requirements (separate calculations required for the 7/1/88 and 7/1/89 compliance dates).

        Example: A 6 nozzle station is placed under order an July 15, 1988. It is projected that compliance will not be attained until September 30, 1989, some 15 months after the July 1, 1988 deadline. This owner/operator has 10 stations, and 7 of these were in compliance on July 1, 1988.

        Step 1

        Calculate the penalty using the penalties for the appropriate time frame.

        [$25] x [6 nozzles] x [9 months between 7/1/88 and 3/31/89] + [$100] x [6 nozzles] x [6 months between 4/1/88 and 9/30/89] = $1350 + $3600 - $4950. As indicated the bracketed penalty factor varies by the time period in which the station comes into compliance.

        Step 2

        Since the owner/operator comes under Order in the first time period, the multiplier factor is 1 Step 2 sum = [Step 1] sum $4,950 x [1] = $4,950.

        Step 3

        The sum in Step 2 is to be reduced by the factor which accounts for the fraction of the respondent's stations in compliance on July 1, 1988 [July 1, 1989 for the stations with a less than 500,000 gallons throughout].

        Step 3 sum = [Step 2 sum $4,950] x [(3 stations in non-compliance)/(10 total stations)] = $1,485.

        This figure is the minimum penalty figure subject to mitigation/adjustment upward or downward as discussed in Section IV of this guidance.

        All orders assessing penalties must include a per nozzle stipulated/liquidated penalty and an ultimate compliance date through use of control equipment or sealing.

        ECL Section 71-2103 provides civil penalty liability of up to $10,000 per violation plus an additional penalty not to exceed $500 for each day during which a violation continues.

Matrix 5 - Revised
Issued 19 August 1992

Part 230 Operational Violations: Recommended Minimum Payable Penalties, Metropolitan New York Area-Wide
Violation Type Enforcement Response
(subject to statutory maximums)
1. Failure to connect Stage I during delivery to gasoline dispensing site $1,000/failure
2. Failure to pressure/vacuum test transport vehicle annually $1,000/truck
3. Excessive vapor leakage during truck loading $1,000/truck
4. Failure to replace, modify any worn or ineffective component to ensure vapor tight integrity and efficacy of Stage I or Stage II vapor control system:
Face Plate
  1. missing
  2. torn>25%
  3. separated > 25%

$100

$100

$100
Bellows
  1. slit >1"/ hole > ½"
  2. improperly installed *
  3. not securely attached *

$100

$100

$100
Latch Ring
  1. missing

$200
Hose
  1. slit > 1"/ hole > ½"
  2. missing venturi
  3. improperly installed
  4. clamp incorrectly placed *

$1,000

$1,000

$100

$100
Retractor Assembly
  1. broken
  2. hose not returning

$500

$200
Check Valve
  1. missing
  2. improperly installed *

$500

$200
Vapor Return Line
  1. improperly installed

$200
Stage I Valve
  1. missing
  2. defective

$500

$500
Instructions / 800 Number
  1. not posted / incorrect number

$100
5. Failure to operate Stage II in accord with requirements of 6 NYCRR Section 230.2 $250/nozzle

Notes:

  1. This matrix is to be used with Appendix II to the Air Pollution Enforcement Guidance Memorandum II.9 issued 7/6/88 and replaces Matrix 5 of the 7/6/88 version.
  2. Fines double for repeat violations of the same type within 24 months.
  3. Maximum fine/dispensing site if settled - $1,500

* Issue warning for first offense.

Revised: Albany, New York
August 19, 1992

Commissioner of Environmental Conservation

Thomas C. Jorling

  1. Fixed Penalty for Rule Violation

    First, there is a fixed penalty for violations of the regulatory requirements. We minimum for these penalties are specified in Matrices 3, 4 or 5. The so called "fixed penalty" is for non-compliance which occurred tolerate and/or which is anticipated to occur because of a compliance schedule in the order extends the ultimate compliance with the regulations past the deadline contained in Part 230. The purpose of the fixed penalty is to discourage the economic benefit from non-compliance. Most of the penalties are to be escalated in proportion to the period of time past the requirement Specified under Part 230. The penalty also includes a gravity component above and beyond the economic benefit which penalizes the violator for the violation arm makes appliance more expensive than compliance. Recoupment of economic benefit only would even the Circumstances between those sources that were able to comply by the required deadline and those which failed to comply by the regulatory deadline. The gravity component increases within the fixed penalties specified for Stage I and II installation violations according to the time frame in which an Order on Consent or resolution of the enforcement matter is obtained. This escalating factor is aimed a making it more economical for a source in noncompliance to commit to a compliance schedule earlier rather than later.

    As noted above the fixed penalty payment shall be made within 15 days after execution of the order.

    Staff should seek much higher penalties when such factors as recalcitrance, deliberate delay in coming to compliance or evasion of the regulatory process is a factor.

    Penalties may only be suspended when the respondent demonstrates severe ability to pay difficulties and when payment of the penalty will impair the respondent's ability to install required control equipment.

  2. Stipulated or Liquidated Penalties for Violation of Compliance Schedules

    In addition to any payable "fixed" penalty, each order that contains a compliance schedule shall include a provision that Specifies a liquidated payable penalty of $50 per day per nozzle as to which the respondent fails to meet any deadline date in the Compliance schedule. This penalty may not be suspended and should be made due within 10 days of DEC's Notice of Violation and Demand for the liquidated penalty. Payment of the liquidated penalty on time puts the respondent back into compliance with the Order but does not relieve the respondent from the obligation to comply with the Order or Part 230.

  3. Stipulated or Liquidated Penalties for Violation or breach of the Order

    Timely payment of the stipulated penalty discussed in paragraph 2 above, puts a source back into compliance with the administrative order, however each order must contain a separate penalty provision which specifies a penalty for violation of the terms of the Commissioner's Administrative Order.

    This last provision should be in the sum of at least $25,000 per station. For example, if a respondent were to fail to adhere to a compliance schedule, and fail to pay the stipulated penalties noted in paragraph 2 above, then that respondent should be liable for both the stipulated penalties specified in paragraph 2 and those Called for in this paragraph. DEC will promptly refer to the attorney General any violation of its orders and seek enforcement of the terms of the orders, collection of unpaid liquidated/stipulated penalties along with an injunctions to seal non-complying nozzles.

  4. Penalties for Operational Violations

    Matrix 5 contains guidance for minimum payable penalties of operational violation.

IV. Mitigation/Adjustment

Each enforcement case file should first include a penalty calculation work sheet which details all provable violations and the appropriate maximum penalties allowable under law. Second, the work sheet should list all the appropriate minimum penalties provided for in this guidance. Third, the staff should then consider factors to increase the penalties above the minimums.

Next, the staff may adjust the minimum recommended penalty where the respondents have encountered delays in obtaining the requisite permits from local agencies and where the respondents were otherwise ready to construct complying facilities.

Lastly, the Department staff may also consider in its enforcement discretion mitigation factors to lower a penalty up to 50% of the minimum penalty where a violator has voluntarily taken on additional responsibility above and beyond that required under law in order to educate the public, and further advance the widespread use and implementation of Stage I and II Vapor Recovery systems in the New York City Metropolitan area. The expenditures to be considered in mitigation should be substantially more than the economic benefit derived from non-compliance.

V. Enforcement Priorities

This guidance is intended to specify minimum enforce responses for a critical aspect of New York's SIP. At the outset of this enforcement program, emphasis shall be placed on the largest sources first. Ultimately, every source should be brought into compliance. Those sources choosing to delay compliance the longest will face increased liabilities because of that delay.

DEC reserves the right to vary this guidance, where necessary, in order to see to the faithful execution of the law. This policy creates no responsibilities or defenses under law.

DATED: Albany, New York
July 6, 1988

Commissioner of Environmental Conservation

Thomas C. Jorling

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