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DEE-5: Air Pollution Control Enforcement Policy - Appendix II.3

Gasoline Vapor Recovery Systems Outside of the New York City Metropolitan Area - 6 NYCRR Part 230 -

Issued 06 July 1988
Revised 29 July 1996

By Enforcement Guidance Memorandum ("EGM") no. II.9, Appendix II.1, dated August 15, 1995, the Department exercised its enforcement discretion to extend the June 1, 1995 deadline for installing Stage i vapor recovery equipment in compliance with Part 230 until December 1, 1995.

In EGM no. II.9, Appendix II.2, dated January 31,1996, the Department outlined the compliance assurance strategy that it would pursue after the December 1, 1995 deadline passed. For any facility owner and/or operator who failed to comply by the December 1 deadline, department staff were directed to provide that person an opportunity to sign a short form consent order by which the sanction would be a $500 per tank suspended penalty. The suspended penalty is payable if full compliance is not achieved within 6 months of the execution of the consent order. Department personnel were directed not to use these short form consent orders from July 1, 1996 forward.

EGM no. II.9, Appendix II.2 specifically provides as follows:

[A]fter [June 30, 1996] all consent orders issued for violations of the Stage I requirements of 6 NYCRR Part 230 outside of the New York Metropolitan Area shall contain a provision for a penalty of $500 per non-complying tank, which penalty shall be immediately due And payable without provision for a suspended penalty.

As the June 30, 1996 deadline for eligibility for suspended penalties has passed, the Department is accordingly increasing its enforcement response against facilities which remain out of compliance and not subject to any consent order with the Department. This document details the strategy that the Department will pursue between July 1, 1996 and January 20, 1997 to ensure maximum compliance with the Part 230 Stage I vapor recovery requirements outside of the New York City Metropolitan Area.

With this EGM, Regional Attorneys are provided with a new suggested form consent order ("new order") provided by Division of Environmental Enforcement Director Gregory Caito. The new order represents a limited and proportional enforcement response in that it contains the necessary payable penalty and allows a noncomplying facility to operate for a certain period in an effort to ensure compliance. The new order is more detailed than the previously used short form consent order ("old order") and preserves a number of rights to the Department that the old order did not mention. The new order also Specifically puts the respondent on notice of the serious consequences of not complying by the deadline set forth in the new order (shut down of the facility's gasoline dispensing operations and assessment of further fines or penalties). the deadline is January 20, 1997(1).

In line with EGM no. I.1, Regional Attorneys are authorized to negotiate these orders with violators in consultation with the Director of DEE. The new order attached to this memorandum may be altered by the Regional Attorneys if they deem it is necessary and such alteration comports with the Department's Civil Penalty Policy. The Consent orders will then be signed by the Regional Directors after consulting with the Director of the Division of Air Resources. This practice differs from that used with the old orders where the Director of the Division of Air Resources was authorized to sign the orders(2).

Dated: July 29, 1996
Albany, New York

Michael D. Zagata
Commissioner of Environmental Conservation

1. Under the compliance strategy outlined in EGM no. II.9, Appendix II.2, a facility owner and/or operator could, at least theoretically, fail to achieve compliance until approximately January 20, 1997 and still avoid a payable penalty. This theoretical scenario assumes that the owner and/or operator was offered the short form consent order on June 30, 1996, returned the Consent order at the end of the allowable 3 week turn-around period, and installed the Stage I system on the last day of the 6 month period. Thus, January 20, 1997 is the appropriate deadline for purposes of implementation of the strategy outlined in this EGM because it is the earliest date by which the Department can be sure that no facilities are operating legally without a Stage I system in place.

2. See Organizational and Delegation Memorandum #96-3, entitled "Execution of Short Form Orders on consent for 6 NYCRR Part 230 Vapor Recovery Violations by the Director, Division of Air."


Revised Order on Consent Form for ECL Article 19 Part 230 of 6 NYCRR

[Note: This is a suggested form consent order. Revise if necessary.]

New York State
Department of Environmental Conservation

In the Matter of Alleged Violations of
Article 19 of the Environmental
Conservation Law ("ECL") and Part 230 of
Title 6 of the official Compilation of Codes,
Rules and Regulations of the State of New York
("6 NYCRR") by
ORDER
CONSENT

and

Respondents. Case #

--------------------------------------------

WHEREAS:

  1. The Department of Environmental Conservation (DEC or the "Department") has jurisdiction over _________________________ pursuant to Article 19 of the ECL.
  2. Respondent is the [owner] [operator] of a _________________ in the _______________ of ______________, County of _____________, state of New York (the "site" or the "facility"). The term "Respondent," as used herein, shall refer to all named Respondents, jointly and severally.
  3. The Department has documented that since December 1, 1995, Respondent has violated 6 NYCRR §230.2(a) in that Respondent operates a gasoline dispensing site which lacks a Stage I vapor collection system.
  4. 6 NYCRR §230.2(a) provides, in pertinent part, that, from June 1, 1995 forward, no person may transfer or allow the transfer of gasoline into a storage tank at a gasoline dispensing site whose Annual throughput exceeds 120,000 gallons unless the site has been registered with the Department and the tank is equipped with an appropriate Stage I vapor collection system.
  5. On August 15, 1995, the Department issued Enforcement Guidance Memorandum no. II.9, Appendix II.1, entitled "Gasoline vapor recovery Systems Outside of the New York City Metropolitan area," by which the Department extended the deadline for achieving compliance with 6 NYCRR §230.2(a) until December 1, 1995.
  6. ECL §71-2103 provides that any person who violates any provision of Article 19 of the ECL or any code, rule, or regulation which was promulgated thereto, shall be liable, in the case of a first violation, for a penalty not less than $250 nor more than $10,000 for said violation and an additional penalty not to exceed $10,000 for each day during which such violation continues. In the Case of a second or any further violation, the liability shall be for a penalty not to exceed $15,000 for each day during which such violation continues. In addition thereto, such person may be enjoined from continuing such violation.
  7. Respondent has affirmatively waived its right to notice and hearing in the manner provided by law, and has consented to the issuing and entering of this Order and agrees to be bound by the terms, provisions and conditions contained herein.

    NOW, having considered this matter and being duly advised, it is ORDERED that:
  8. Civil penalty. In respect of the violation(s) described above, a civil penalty in the amount of $_________ is hereby assessed against Respondent, which amount shall be paid by respondent to the Department upon Respondent's return of an Executed copy of this Order to the Department. Payments shall be made by check sent to _________________, Attention: _______________.
  9. Environmental Regulatory Program Fees. This order shall not be construed to limit the Department's right to Seek payment of any Environmental Regulatory Program Fees which may be due under Article 72 of the ECL.
  10. Failure to make penalty payment.
    1. In the event that the Respondent fails to pay the penalty due pursuant to this Order by the effective date (e.g., check returned for insufficient funds), the conditional authority to operate granted under this Order will terminate and this Order may be enforced by the Department as a civil judgement for the penalty amount in the State of New York and in any other jurisdiction in which Respondent may reside, do business or have any assets, without the need for any further proceedings whatsoever.
    2. With regard to any penalty amount due pursuant to this Order which is not paid by the specified effective date, Respondent shall be liable for and shall pay interest from the effective date at the rate specified by the New York Civil Practice Law and Rules for interest on judgement.
  11. Conditional authority to operate. the respondent is granted a conditional authority to operate the facility which shall expire at the close of business January 20, 1997 if the facility does not have appropriate Stage I vapor collection equipment installed and operational at the facility by that date. Should the facility lack such equipment by that time, the Respondent shall completely cease gasoline dispensing operations at the facility until such time as the facility comes into complete compliance with the Stage I requirements set forth in 6 NYCRR §230.2.
  12. Full settlement.
    1. The Department shall not institute any action or proceeding for penalties or other relief for the violation described above for so long as Respondent remains in compliance with this Order. Any failure by Respondent to comply fully with the terms of thins Order may subject the Respondent to further enforcement action for the violation described above. Compliance with this Order shall not excuse nor be a defense to charges of any violations of the ECL or any other regulation or permit issued thereunder, which may occur subsequent to the date of this Order.
    2. Respondent waives its right to contest, in any hearing or judicial action or otherwise, any allegation by the Department of the facts alleged herein or that the conduct described in this order occurred and was in violation of law, as alleged herein.
  13. Inspections. For the purpose of insuring compliance with this Order, and with applicable provisions of the ECL and regulations promulgated thereunder, representatives of this department shall be permitted access to the facility and to relevant records during reasonable hours, in order to inspect and/or perform such tests as may be deemed appropriate to determine the status of Respondent's compliance.
  14. Other Approvals. Respondent shall be obligated to obtain whatever permits, approvals or authorizations may be necessary in order to carry out its obligations under this Order. This Order shall not relieve the Respondent of the obligation to comply with any other laws, rules or regulations of the State of New York or any other governmental authority which are applicable to Respondent's activities, nor preclude or limit such enforcement action as may be authorized by law for any such violation.
  15. Summary abatement. The terms of this Order shall not be construed to prohibit the Commissioner or his duly authorized representative from exercising any summary abatement powers, either at common law or as granted pursuant to statute or Regulation.
  16. Indemnification. Respondent shall indemnify and hold the Department, the State of New York, and their Representatives and employees harmless for all claims, suits, actions, damages and costs of every name and description arising out of or resulting from the fulfillment or attempted fulfillment of the provisions hereof by Respondent, its directors, officers, employees, servants, agents, successors or assigns.
  17. Force majeure. Respondent shall not be in default of compliance with this Order to the extent that Respondent may be unable to comply with any provision of this Order because of the action of a national or local government body or court, an act of God, war, strike, riot or catastrophe as to any of which the negligence or willful misconduct on the part of Respondent was not a proximate cause; provided, however, that Respondent shall use its best efforts to comply. Respondent shall provide notice to the Department in writing immediately upon obtaining knowledge of such event, and shall request an appropriate modification to this Order. Relief under this clause shall not be available to Respondent, with regard to a particular event, if Respondent fails to provide timely notice of such event. The Respondent shall have the burden of proving entitlement to relief under this clause, by clear and convincing evidence.
  18. Effective Date. The effective date of this order is the date on which it is signed by the Commissioner of the Department or the Commissioner's representative.
  19. Default. The failure of Respondent to comply fully and in a timely fashion with any provision of this Order shall constitute a default and a failure to perform an obligation under this Order and under the ECL, and shall constitute sufficient grounds for revocation of any permit, license, certification or approval issued to the Respondent by the Department.
  20. Binding effect. The provisions of this Order shall be deemed to bind the Respondent, its officers, directors, agents, employees, contractors, successors and assigns, and all persons, firms and corporations acting under or for it, including, without limitation, any subsequent operator of the Facility who may carry on activities now conducted by Respondent at the Facility, and any successor in title to the Facility or any interest therein.
  21. Authority. The individual signatories to this order represent that they have authority to bind the respective parties by execution of this Order.

Dated:______________________, New York

Michael D. Zagata
Commissioner
New York State Department of Environmental Conservation

by: _________________________________

Regional Director, Region ________

Respondent hereby consents to the issuing and entering of this order, waives its rights to notice and hearing herein and agrees to be bound by the provisions, terms and conditions contained herein.

_________________________________

By: _________________________________

Title: _________________________________

Date: _________________________________

STATE OF

ss:

COUNTY OF

On this day of 200___, before me personally came & to me known, who being by me duly sworn did depose and say that s/he is of the Corporation named in and which executed the foregoing Instrument, and that s/he executed the foregoing Order on Consent as authorized by said Corporation.

_________________________________
Notary Public

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