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DEE-5: Air Pollution Control Enforcement Policy - Appendix IV (1994 Revision)

Permit to Construct and Certificate to Operate Violations by Non-Major Facilities
6 NYCRR Part 201

Revised: November 1, 1994

I. Purpose

This is a revision to the EGM issued on March 21, 1991 which stated DEC's enforcement strategy for addressing the failure of Certain types of sources to obtain permits to construct and/or certificates to operate. Both the revised EGM amendment and the previously issued guidance do not apply to air violations characterized as Class I High Priority Violations according to Enforcement Guidance Memorandum II.9 nor to significant violators (defined in EPA guidance and determined by DEC under the procedures in EGM II.9). The chief purpose of this Appendix to EGM II.9 is to establish a uniform range of penalties that Department staff should seek in prosecution of certain sources that do not hold requisite part 201 permits and approvals. Furthermore, this EGM appendix articulates DEC's special consideration of the unique Circumstances surrounding the need to extend a uniform and direct helping hand to many small businesses to achieve compliance with the Clean Air act(1) Many small businesses have failed in or are unaware of their legal responsibility to come into compliance with longstanding DEC regulations requiring a Part 201 certificate to operate. Congress and the State of New York in creating the Small Business Technical and Environmental Compliance Assistance Program recognized the unique burden that small businesses endure in order to meet the challenge of economic and regulatory requirements. DEC will give special consideration to those small businesses wishing to come into compliance where they avail Themselves of the technical services and audit program made Available by the New York State Environmental Facilities Corporation (EFC)(2) or other small business assistance provider.

II. Background

Part 201 has its origins in air pollution law dating back to 1962 when responsibility for air pollution control rested with the Department of Health. At least since 1972, no source of air contamination within the state, unless otherwise specifically exempted, has been allowed without prior authorization by DEC or a local government delegate. The list of the exempted sources is set forth at 6 NYCRR Section 201.6(3). An accurate inventory of emission sources is absolutely critical to the State implementation Plan (SIP) process and provides for orderly and fair implementation and cost allocation of the State's air pollution control effort. This "Window of Opportunity" program is critical to DEC achieving full compliance with the Clean Air Act.

The current inventory of permitted sources is largely complete. Notwithstanding this fact, there is continuing need to detect and gain compliance by sources not previously identified.

DEC is under strict statutory obligation to demonstrate progress in attaining National Ambient Air Quality Standards (NAAQS). Sanctions and further federal intervention in air pollution control would be the consequence of this agency's inability to document Compliance with existing State Implementation Plan (SIP) strategies. Furthermore, DEC commits to EPA to undertake enforcement in accord with out Civil Penalty Policy. Failure By DEC to maintain a program which practically adheres to "Timely and Appropriate" guidelines (see Appendix I of EGM II.9) could result in EPA "overfiling" on individual matters. Such federal enforcement would be disruptive to the state program. Where EPA finds that state action is consistently "inappropriate" there may be repercussions to program grants.

III. Applicability of this EGM

This EGM applies to small businesses meeting the following criteria:

  1. The business is owned and operated by a person that employs 100 or fewer employees, AND
  2. The company is a concern defined in the Federal Small Business Act (640 Kb PDF) and consequently independently owned and not dominant in its field, AND
  3. The facility is not a major stationary source(4); OR, has submitted approvable applications to insert federally enforceable permit conditions in accord with Air Guide 10, the "capping out" guidance document.

IV. Enforcement Strategy

DEC's strategy with respect to small business under the Clean Air Act is to create a policy and guidance structure that Simply and clearly provides an incentive for businesses demonstrating good faith to come into compliance with air pollution control requirements. A violator that comes in sooner rather than Later should be rewarded by lenient penalty sanctions, while a source that continues to ignore environmental requirements should face more sever sanctions.

The use of enforcement discretion to waive assessment of payable penalties must be accomplished under strict conditions that do not undermine the foundation of DEC's successful enforcement policy. First, it must never be misinterpreted as a lack of will And determination to take enforcement action and to compel Compliance with the law. Second, it cannot be fundamentally unfair or viewed as unfair to businesses and industries which have been subject to vigorous DEC enforcement and substantial penalty payments. Third, it must assist the Department in efficiently improving compliance rates. Finally, it must be an integral part of implementation of a federal statutory scheme that establishes the policy foundation for such an effort.

DEC has also exercised enforcement discretion to waive penalties where fairness required grace periods to come into compliance with newly applicable requirements. In some cases where available lead time to come into compliance was extraordinarily short or where industry-wide shortages of equipment and contractors to bring about Compliance, compliance schedules allowing additional times to come into compliance have been operative policy. This EGM however deals with instances of general non-compliance with no such predicates. Therefore, these problems require a different treatment.

The last widespread use of a penalty waiver program involved autobody shops in 1991. In that program, DEC was able to issue Certificates to Operate to several hundred autobody refinisher shops that were previously outside the regulatory system. Penalties were waived for those voluntarily coming forward for a ten month period between October 1991 and August 1992. It is hoped that A similar "grace period" provided to other industries will Result in increased compliance. Therefore, unpermitted autobody refinishers are excepted from the special penalty waiver provisions set forth below for other small businesses.

Non-Major Facility Enforcement Priorities

DEC's enforcement priorities for violation of air pollution control laws are set forth in Enforcement Directive II.9, the document to which this EGM is an appendix. Violations that endanger health and safety are to receive the highest priority for Resolution. It is one objective of this EGM to utilize the opportunity for provision of technical assistance and outreach by EFC and DED to spur voluntary compliance. This EGM is also a work priority shifting directive to regional units: During the Window of Opportunity period, enforcement resources should be directed toward more significant violators. After the conclusion of the Window of Opportunity more vigorous attention will be focused upon the non-major sources that have chosen to remain outside the regulated system by not availing themselves of this penalty waiver program.

Window of Opportunity

The term "Window of Opportunity" is being used to communicate to the unregistered and unpermitted facilities in New York that there will be a short period of time for them to address their non-compliance with air pollution control laws with the least possible penalty consequences when they voluntarily step forward, secure the technical assistance of EFC or other comparable technical assistance resources, and make a good faith commitment to procure expeditiously control equipment or process changes to bring about compliance.

The DED is statutorily charged to conduct an outreach program to small businesses eligible for this Window of Opportunity. DEC is working with EFC and DED to best ensure that the communication to eligible businesses is straightforward and clear. That communication will include the basic terms of this EGM and the fact that the Window of Opportunity will irrevocably close on September 1, 1995.

In instances where the source could legitimately claim that the local governmental air source permitting program led them to reasonably believe that no other state permit was required, DEC has often waived all penalties for those sources that cooperated in good faith to quickly address non-compliance. This practice is in furtherance of the Civil Penalty Policy and is specifically made a tenet of this EGM, where the facility cooperates in expeditiously addressing emission control requirements.

V. Enforcement Responses

Notices of Violation

It is henceforth required that all DEC Air Resources Staffs performing inspections of regulated stationary sources issue, at the time of inspection or shortly thereafter, Division of Air Resources "Notice of Compliance Determinations" (NOCDs)(5). Where a violation is detected, the appropriate entry to the form should be made. Service of this form, where a violation is detected is normally (but not always) the first step in commencement of an enforcement action. For some minor violations, the Notice of Violation with a certain period of time to cure the deficiency will abort the need to proceed through further enforcement(6).

While it is categorically not a requirement of law that DEC issue Notices of Violations (NOVs) or conduct outreach programs to inform violators of long-standing legal obligations, such efforts should be undertaken to promote compliance and to lay the groundwork for an effective deterrence program. Where such efforts have occurred, penalties should be higher, especially in those Circumstances where the Department can prove issuance of some form of prior notice directly to the violator. Quick response by a source to correct cited violations will lessen the penalty consequence for that source. In general, sources that delay in coming into compliance should be penalized more than those that Comply on their own or earlier. This is only fair in light of Compliance costs borne by other businesses.

Summary of Enforcement Responses for Failure to Have any part 201 Permits for Facilities Subject to This EGM

Summary of Enforcement Responses for Failure to Have any part 201 Permits for Facilities Subject to This EGM
CIRCUMSTANCE RESPONSE
Source owner voluntarily applies for Permit to Construct and/or certificate to Operate after source is in operation. During the window of Opportunity Period a source may preserve this option if it:
  1. actually applies for the certificate to operate, OR
  2. engages the Small Business Compliance and Technical Assistance program, a Professional Engineer (P.E.) or other technical assistance provider, AND, files a "letter of intent" as stated in the attachment to this EGM
During Window:
$0 penalty plus up to one year regulatory fees avoided for sources submitting a complete application or letter of intent by September 1, 1995.*

After Window:
$150-$300 civil penalty plus up to three years of regulatory fees avoided(7) for sources submitting applications after September 1, 1995.

* Autobody Refinishers excepted.
Source owner applies for requisite Permits within 30 days of issuance of an NOCD/NOV or ECAT requiring either abatement or application within 30 days. $300-$500 per permit plus up to three years outstanding regulatory fees avoided in administrative settlements concluded by September 1, 1995. For settlements concluded between September 1, 1995 and December 31, 1995 the penalty per permit is $400 - $700. For settlements concluded after January 1, 1996 the penalty amounts should be in the range of $600 to $1,000 per permit. Actions going to hearing should be prosecuted for higher penalties as appropriate.
Source owner fails to apply for requisite Permits within 30 days of issuance of a NOCD/NOV. Issue ECAT for ECL Section 71-2105 misdemeanor or short-form Administrative Complaint. No administrative settlements for less than $1,000 - $2,000 per permit plus regulatory fees avoided. Matters charged or subject to complaints after January 1, 1996 shall be settled for no less than $5,000 per facility. Actions going to hearing should be prosecuted for higher penalties as appropriate.

Significant Impact Violations Detected by DEC During Inspections

During the Window of Opportunity period, DEC enforcement staff is not constrained from performing surveillance and enforcement activity to address significant impact violations causing nuisance And health and safety impacts. Where such effort uncovers violations by a small business having no certificate to operate, DEC staff should proceed through the enforcement process and obtain compliance and appropriate penalties in accord with rule specific guidance memorandums and the Civil Penalty Policy.

Substantive Air Regulation Violations Revealed by Self disclosure

The purpose of the "Window of Opportunity" is to create a sufficiently attractive program of penalty consideration in the context of a high quality outreach and subsequent vigorous enforcement action program. Consequently, DEC will affirmatively extend a waiver of penalties to those instances where the voluntarily completed applications and letter of intent received During the Window of Opportunity reveal substantive violations of parts 212, 228 and 234, and the other VOC and NOx RACT rules. However, the waiver should not be extended where there have been substantial releases of highly toxic contaminants that are found to be present and exceed the Air Guide 1 (182 Kb PDF) values (Table II) by a factor of 2 or more. As was indicated above, where a source is voluntarily availing itself of EFC, P.E. And other technical assistance programs, and files a letter of intent, DEC staff should not expend enforcement resources to gather evidence of further violations by such a source unless significant environmental or health and safety concerns attend the matter.

Deadline for Applications and Installation of Controls

All applications called for under a letter of intent must be submitted in complete form within 120 days of the letter of intent. The schedule for compliance to attain full compliance must be as expeditious as possible. Compliance that will involve periods longer than 120 days past the issuance of a Permit to Construct Should be subject to an Order on Consent that includes standard clauses for stipulated penalties for unexcused delays and for the recoupment of economic benefits derived form protracted Non-compliance beyond the 120 days noted above.

Extraordinary Circumstances and Exclusions

Environmental Conservation Officers and Air Resources staff finding actionable substantive violations and/or circumstances which in their judgement require alternate responses may vary from this guidance. One such circumstance is where the enforcement staff Can sustain a case that permit requirements were deliberately evaded to accelerate construction of new sources.

Administrative settlements should include substantial stipulated penalties to ensure faithful implementation of compliance schedules.

VI. Conclusion

The Department's Civil Penalty Policy recognizes the high priority placed on Maintaining through vigorous enforcement the integrity of the permitting, self reporting, and self registration systems used to carry out various regulatory programs required by the Legislature in the ECL. This EGM is aimed at making sure that it is good business to comply sooner rather than later.

This guidance is effective immediately.

DATED: November 1, 1994

Albany, New York

Langdon Marsh

Commissioner of Environmental Conservation

Letter of Intent

This form "Letter of Intent" or a facsimile may be submitted by a small business meeting the conditions set forth in the referenced EGM in order to secure a position concerning penalties for past violations if: it is submitted during the "Window of Opportunity"; it is submitted before September 1, 1995; and, it is submitted prior to issuance of a Notice of violation by DEC.

TO:

New York State Department of Environmental Conservation
Region _____ Office
Attention: Regional Air Pollution Control Engineer
_____________________________
_____________________________
___________________, New York ______________

FROM:

Name of Company: _______________________________________
Street Address: __________________________________________
_______________________________________________________
Mail Address if Different:
_______________________________________________________
Location/City/Town/County:
_______________________________________________________
Authorized Individual Submitting this Letter of Intent:
_______________________________________________________
Telephone Number: _______________________________________
Title/Position: ____________________________________________

Statement: The above named company intends to undertake a program and course of action to bring about compliance with New York State air pollution control regulations. The company has engaged the Environmental Facilities Corporation, or a private professional Engineer, or another qualified technical services provider to assist the company in achieving compliance with DEC air Regulations. I intend to submit a permit application under New York State regulation (6 NYCRR Part 201) within 120 days of this letter that will show the company's intended path toward compliance.

I understand the terms of a "Window of Opportunity" outlined in a DEC Enforcement Guidance Memorandum on this subject issued in November 1994. I also understand, that provided no potentially serious toxic air contamination of nearby residents and places of businesses has been caused by air violations of this company, that the company will receive any air permits it qualifies to receive under law without assessment of penalties for past state Air violations covered by the terms of the Enforcement Guidance Memorandum.

To the best of my knowledge, this company is not subject to any pending enforcement actions by the New York State Department of Environmental Conservation.

Signature of Authorized Representative of the Company/Corporation Listed Above:

______________________________________________________


Dated:
____________________________________


1. Small businesses in New York State provide 52% of the employment within the state and a majority of the new job creation. It is estimated that 470,000 small businesses exist in New York State. Approximately 40,000 of these will be affected by the Clean air Act.

2. The Small Business Technical and Environmental Compliance Assistance Program is a Federally mandated program under the Clean air Act. It is operated through the Environmental Facilities corporation (EFC) and the Department of Economic Development (DED).

The DED is the Small Business Ombudsman and provides general information on regulations, sets up workshops, handles complaints, and acts as the advocate for small business. The EFC is the Small business Assistance Program provider. EFC provides advice on pollution prevention and control strategies, and conducts environmental audits. EFC and DED have statutory responsibilities to protect the confidentiality of information obtained by those entities in the course of providing technical assistance.

EFC, because of constrained resources, may have to limit its provision of more in depth services according to the following priority scheme:

  • Facilities meeting the federal criteria - first priority to those businesses located in non-attainment areas with the highest non-attainment classification (i.e. severe, moderate, marginal, then attainment.)
  • Other facilities meeting the criteria set forth in Section III of this EGM which is the criteria for eligibility set forth in New York's SIP. Priority within this group of businesses will be according to level of Non-attainment/attainment.
  • Lastly, EFC to the extent possible will attempt to provide Assistance to facilities outside of the SIP eligibility criteria again giving higher priority to facilities located in the worst non-attainment classifications first.

3. DEC will be proposing substantial revisions to Part 201 in November of 1994. The list of exempted sources will once again be modified. In addition, starting with revisions to Part 230 in 1994, DEC will increasingly move toward "registration" of some "area" sources categories. Failures to register will most likely be dealt with in rule or industry specific EGMs. In the absence of a rule specific EGM, failure to register should be treated as failure to obtain a Part 201 permit under this EGM.

4. Major Stationary Sources are those facilities that have a potential to emit 25 tons or more of VOC or NOx in the downstate severe non-attainment areas and facilities which have the potential to emit 50 or more tons of VOC or 100 or more tons of NOx in the upstate Areas, and those facilities which have the potential to emit either 10 tons of any single toxic contaminant or combination of Contaminants equal or greater than 25 tons per year. Toxic contaminants are those listed in Section 112 of the Clean Air Act.

5. The types of enforcement responses available to DEC for violation of Part 201 and other air regulations include: Notices of Compliance Determination (NOCD) with the Notice of Violation (NOV) box checked; administrative orders, be they "On Consent," short form or after adjudication; Environmental Conservation appearance Tickets (ECAT); referral to the Attorney General or District Attorney for prosecution, referral to EPA; and the initiation of permit actions, such as revocation, suspension or modification.

6. The Division of Air Resources shall immediately commence the Development of guidance to ensure consistent application of this field inspector discretion for regulations where such guidance does not already exist. Such guidance is in place, for example, in the Case of Part 230 operation and maintenance of Stage II vapor recovery equipment and for oxygenate and RVP fuel standard violations.

7. "Regulatory fees" or more precisely, "State Air Quality Control Fees" are required by legislation. The fee applicability and amounts are set forth in ECL §72-0302 for the non-major stationary sources. Fees are on a per source basis. During this Window of Opportunity only, the DEC shall assume that regulatory fee liability for past unpermitted operation does not extend prior to the current regulatory billing period. Hence, the maximum back regulatory fees owed are those for 1994, provided the source otherwise qualifies for the zero penalty treatment during the Window of Opportunity. The agency has made this determination based upon the anticipated evidentiary and administrative burden to be placed upon it by the acceptance of many permit applications and in order to best frame the invitation to small businesses wanting to voluntarily come into compliance by September 1, 1995.

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