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DEE-5: Air Pollution Control Enforcement Policy - Appendix IV (1995 Revision)

Construction and Operating Permit Violations by Qualifying Non-Major Facilities, 6 NYCRR Part 201

Revised: June 30, 1995

I. Purpose

This Enforcement Guidance Memorandum (EGM) is a revision to the November 1, 1994 EGM which stated DEC's enforcement strategy for 6 NYCRR Part 201 (Part 201) with respect to certain small businesses(1). In the near future DEC will be proposing major revisions to Part 201 in order to meet the requirements of Title V of the federal Clean Air Act and to implement regulatory reform in the state program. It is anticipated that the pending revisions to Part 201 will include a substantial number of exemptions and other provisions that will be applicable to small businesses.

The amnesty program established by the November 1, 1994 EGM was designed to work in concert with an outreach campaign provided by the Department of Economic Development (DED) and a technical services program administered by the Environmental Facilities Corporation (EFC). Unfortunately, the uncertainty caused by the pending revisions to Part 201 has severely hampered both DED's planned outreach campaign and EFC's ability to provide technical services to responding small businesses. As a result of these concerns it has become necessary to revise the applicable DEC Enforcement policy to provide for an Interim Amnesty Period that will extend until the regulatory requirements of Part 201 are finalized.

II. Applicability

This EGM and the previously issued guidance do Not apply to air violations characterized as Class I high priority Violations in accordance with Enforcement Guidance Memorandum II.9 nor to significant violators (defined in EPA guidance and Determined by DEC under the procedures in EGM II.9). This EGM applies only 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 is independently owned and not dominant in its field, and;
  3. The facility is not a major stationary source(2); or, has agreed in writing to accept federally enforceable permit conditions in accord with Air Guide 10, the "capping out" guidance document.

III. Interim Amnesty Policy

This EGM establishes an Interim Amnesty Period which is effective immediately and terminates upon adoption of the revised part 201. Once Part 201 is adopted, DEC will issue another EGM which establishes an amnesty period that will operate in conjunction with DED's outreach campaign and EFC's technical services program.

During the Interim Amnesty Period DEC will focus its enforcement efforts upon significant violators rather than on violations of part 201 by the small businesses to whom this EGM is applicable. in the event that DEC becomes aware that a qualifying small business is in violation of the requirements of Part 201 during the Amnesty period, the small business is to be notified in writing with a Part 201 Notice to Cure Letter. The issuance of a Notice to Cure Letter shall commence a 30 day period during which the small business must confirm, in writing, that it has contacted DED's Small Business Ombudsman Office at (800) STATENY ext. 157, EFC's small business assistance program (800) 780-7227, or another qualified small business assistance provider to obtain assistance in achieving compliance. Such "Letters of Intent" must also include a commitment by the small business to come into compliance with the Department's regulations within 120 days.

Those small businesses that submit "Letters of Intent" and/or completed permit applications and comply with the terms thereof will not be subject to any penalties or other administrative enforcement remedies. Provided that a source qualifies for this zero penalty treatment, DEC will also limit any regulatory fee liability for past unpermitted operations to the Current billing period. Those small businesses that do not take Advantage of this offer of amnesty and refuse to submit a written commitment or completed permit application shall be subject to administrative penalties and past regulatory fees for unpermitted operations.

In light of the numerous exemptions to Part 201 which are expected to be applicable to small businesses, DEC will also refrain from taking any enforcement action against qualifying small businesses whose operations fall within the proposed exemptions to Part 201. Qualifying small businesses that are covered by the proposed exemptions do not need to submit a permit application or Letter of Intent in order to Secure the protection provided by this EGM. Rather, qualifying small businesses that meet the proposed exemption requirements shall simply be treated as if the proposed exemptions have already been adopted(3).

In order to ensure that the amnesty program does not pose a risk of related enforcement concerns for small businesses, DEC will also affirmatively extend a waiver of penalties to those instances where A completed application or Letter of Intent received during the interim Amnesty Period reveals substantive violations of Parts 212, 228 and 234, and the other VOC and NOx RACT rules(4). However, this 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 values (Table II) by a factor of 2 or more. Note also that this EGM as a whole is inapplicable to Class I High Priority violations.

IV. Alternate Responses

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.

V. Conclusion

The enforcement policy set forth in this EGM shall serve as an interim measure until such time as Part 201 is revised. This policy is intended to act as a bridge between the November 1, 1994 EGM and a forthcoming revised Part 201 EGM which will encourage maximum compliance by working in concert with the small business programs established at the DED and EFC.

This guidance is effective immediately.

DATED: Albany, New York
June 30, 1995

Commissioner of Environmental Conservation

Michael D. Zagata


By Certified Mail:
Contact Person:
Facility Name and Address:

Re: 6 NYCRR PART 201 NOTICE TO CURE

Dear:

The New York State Department of Environmental Conservation (DEC) has determined that the above-referenced facility has been constructed and/or operated without a construction and operating permit as required by 6 NYCRR Part 201. In accordance with DEC's 1995 Enforcement Guidance Memorandum establishing an interim Small Business Amnesty Program, you are hereby given 30 days from the date of this letter in which to cure this alleged violation and avoid any penalty which would otherwise be applicable to a violation of Part 201.

You may cure this alleged violation by submitting either (1) an application for a Part 201 construction and operating permit (copy enclosed) or, (2) a Letter of Intent which commits your small business to a compliance program (form letter enclosed). Qualifying small businesses that take advantage of this opportunity to cure will also be granted a waiver of penalties for substantive violations of Parts 212, 228, 234, and other VOC and NOx RACT Rules where compliance with such requirements is achieved contemporaneously with the Part 201 compliance. (If such substantive violations have been alleged in this instance, a copy of the applicable analysis is also enclosed.)

The New York Environmental Facilities Corporation (EFC) or other qualified small business assistance provider can assist you in preparing a permit application and/or Letter of Intent. the EFC's small business program providers can be reached at 1-800-780-7227. Further assistance may be obtained form the New York State Department of Economic Development's Small Business ombudsman at 1-800-STATENY ext. 157.

Please be advised that is you do not take the steps necessary to cure this violation within 30 days from the date of this letter your facility will be subject to fines and penalties associated With violations of New York State air pollution control Regulations.

Very Truly Yours,

_____________________________
Regional Air Pollution Control Engineer
NYSDEC

cc: Patrick Lentlie - DEC, Marion Mudar - EFC, Doreen Monteleone - DED

Letter of Intent

A completed version of this form "Letter of Intent" 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.

TO: Mr. Patrick Lentlie
New York State Department of Environmental Conservation
Room 110
50 Wolf Road
Albany, New York 12233-3253

FROM: Name and Mailing Address of Company: ___________________________

Facility Address if Different: _____________________________________

Location/City/Town/County: ____________________________________

Authorized Representative: ______________________________________

Title: _________________________________________________________

Telephone Number: _____________________________________________

Statement: The above named company intends to undertake a course of action to bring about compliance with New York State air pollution control regulations. The company has engaged the Environmental Facilities Corporation, or another qualified technical services provider to assist the company in achieving compliance with State air pollution regulations. I intend to submit a permit application under 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 the 1995 Enforcement Guidance Memorandum establishing an Interim Amnesty Program for 6 NYCRR Part 201. 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. As described in the Applicability Section of this EGM, the policies established by this document are applicable only to certain qualifying small business sources. Enforcement policies with respect to those sources not covered by this EGM will continue to be governed by Enforcement Guidance Memorandum II.9 and its applicable appendices.

2. Major Stationary Sources are those facilities that have a Potential to emit 25 tons per year (tpy) or more of VOC or NOx in the downstate severe non-attainment areas and facilities which have the potential to emit 50 or more tpy of VOC or 100 or more tpy of NOx in the upstate area, and those facilities which have the potential to emit 10 tpy of any single toxic contaminant or combination of contaminants equal or greater than 25 tpy. Toxic contaminants are those listed in Section 112 of the Clean Air Act. For purposes of this EGM, major stationary sources are Also those facilities statewide that have a potential to emit 50 tpy of Carbon Monoxide and those facilities statewide that have a Potential to emit 100 tpy of PM-10.

3. The New York Environmental Facilities Corporation, another qualified small business assistance provider, or the appropriate DEC Regional office can assist small businesses in determining whether the proposed exemptions are applicable to their particular operations.

4. Note that additional amnesty is available only to those entities that qualify for small business treatment under the terms of this EGM and have submitted a Letter of Intent and/or a completed permit application voluntarily or within 30 days of a notice to Cure Letter.

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