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

Stationary Combustion Installations - 6 NYCRR Subpart 227-2

I. Purpose

This Enforcement Guidance Memorandum (EGM) establishes the Department's enforcement strategy for addressing noncompliance with 6 NYCRR Subpart 227-2. Subpart 227-2 requires Reasonably Available Control Technology (RACT) for oxides of nitrogen (NOx) from existing stationary combustion installation. Subpart 227-2 was promulgated on January 19, 1994 and became effective February 18, 1994. It applies to all stationary combustion facilities in the state that are defined as major stationary sources. For the New York City Metropolitan Area and the lower Orange County metropolitan Area(1) a facility is a major source if it has a potential to emit more than 25 tons per year of NOx. For the remainder of New York State only those facilities with the potential to emit more than 100 tons per year of NOx are major stationary sources. This EGM sets forth DEC's enforcement responses for failure to submit the Compliance plan due March 15, 1994, failure to submit the Permit to construct Application due July 15, 1994, failure to submit the Certificate to Operate Application due February 15, 1995 and failure or delay in meeting emission limitations and other permit requirements required by May 31, 1995.

It is the duty of the DEC as a regulatory and enforcement agency to ensure compliance with the ECL, the Clean Air Act and associated regulations. Enforcement is used as a tool to gain the greatest compliance possible with requirements of law and to deter and punish violators of the statute and regulations.

In certain instances DEC anticipates that actual compliance with the regulatory and statutory requirements set forth under Subpart 227-2 and the Federal Clean Air Act will not occur because of delays wholly beyond the control of regulated sources. Also, some entities will be proposing the undertaking of certain innovative Approaches toward compliance that bear the strong likelihood of Obtaining substantial environmental improvement. DEC wishes to encourage NOx reductions beyond those minimums required by law and at lower costs. Improvements and refinements in control Technology hold out the promise of better, more reliable and cheaper compliance. DEC shall exercise appropriate enforcement discretion consistent with the Civil Penalty Policy and fairness to the regulated community to encourage innovative technology solutions that lower the overall societal costs of Environmental control and thereby advance New York's economic and environmental interests. By the same token, DEC will structure its relationship with sources venturing in to the areas of technology advancement so that there is ultimate compliance and that no economic benefits from non-compliance accrue. Of course firms must find an economic incentive to risk development costs to advance technology. The projected savings from new, innovative or Developed technology is not an economic benefit from non-compliance. Hence, savings that accrue to the developer of New approaches that ultimately come into use shall not be penalized for a temporary delay in attaining compliance where the developer optimizes system operations to reduce NOx emissions during the temporary period of delay and is risking substantial Developmental and/or capital expenses in pursuing the developmental Technology. All this presumes that the temporary period of delay is not associated with other complicating environmental compliance issues such as prolonged human exposure to toxic or other air emissions.

II. Background

Federal Clean Air Act Amendments

The 1990 Clean Air Act Amendments (CAAA) require NOx emission reductions from fossil fuel fired power plants and other combustion sources under both Title I (non-attainment) and also Title IV (Acid Deposition Control). Title I of the CAAA seeks to bring all non-attainment regions in the United States into compliance with the National Ambient Air Quality Standards (NAAQS). NOx reductions under Title I are to be determined by the specification and implementation of Reasonably Available Control Technology (RACT) on some fossil fueled fired combustion sources. If additional reductions in NOx are needed to attain health and welfare standards, further reductions beyond RACT may be mandated by New York State and other states. Notwithstanding this, it should be noted that federal and state law and regulations governing new major sources, such as power plants, require Lowest achievable Emissions Rates (LAER) in non-attainment areas and the ozone Transport Region (which includes all of New York State.) the acid Deposition Control provisions (Title IV) of the CAAA set a goal that the annual NOx emissions from "affected sources" in the 48 contiguous states and the District of Columbia emissions should be reduced by 2 million tons from the 1980 levels via the combination of controls established pursuant to Title I and Title IV. This is to be accomplished in two phases by the year 2000. Hence, some fossil fueled utilities, Title IV facilities, may be subject to additional NOx controls. Additional NOx controls may be necessary at Certain facilities now subject to Subpart 227-2 in order for the state to attain or maintain the NAAQS for ozone, particularly in the severe non-attainment area.

Population of Sources

As many as 8,000 existing boiler and other combustion sources operating in New York are subject to Subpart 227-2(2). However, pursuant to the regulation, as many as 7,000 combustion sources affected by the Subpart may be able to accept:

  1. De-rating of hourly maximum heat input to the boiler, or
  2. Limitation in annual hours of operations at maximum rated heat input, or
  3. Accept a limit on annual fuel use.

Such measures as De-rating and "capping out" should be the subject of the Compliance Plan due March 15, 1994 and must ultimately be incorporated into federally enforceable permit Conditions. (See Air Guide 10 on federally enforceable permits.)

Technologies

There are various technologies available today to reduce NOx such as combustion modification including utilization of low NOx burners, overfire air, gas reburn and post combustion controls including catalytic and non-catalytic reduction. In promulgating Subpart 227-2 DEC set emission standards based on the use of combustion control modifications, not on the installation of "end of pipe" control devices. For example, use of SCR (Selective Catalytic Reduction) is not required by this regulation although some facility owners may choose this approach if advantageous from a system-wide approach to compliance.

RACT requirements for a mid-size, large or very large boilers may include control technologies such as low NOx burners, flue gas recirculation, staged combustion, or selective non-catalytic reduction. Small boilers require annual tune-ups.

Timeliness

As discussed above, Subpart 227-2 and the Federal Clean Air Act provision upon which it is based (CAAA Sections 182 and 184) require that RACT be installed no later than May 31, 1995. In the past, NOx controls for older sources were not required on a national scale and thus control equipment manufacturers have not Supplied NOx controls at the rate needed to meet the May 31, 1995 deadline. It is possible, therefore, that the control Equipment will not be available in all cases to meet the demand of sources. DEC has, however, promulgated a rule with a strict May 31, 1995 deadline for installation of controls in conformance with the federal Clean Air Act. However, EPA has expressed a willingness to consider situations for demonstrated reasons for impracticality for installation of the RACT controls beyond the May 31, 1995 deadline. EPA has also expressed, as does the Clean Air Act, that RACT should be installed expeditiously as practicable. DEC likewise seeks to have all practicable efforts made to install required controls as expeditiously as possible. DEC shall take into consideration both the delay of equipment availability due to control equipment manufacturing shortages, construction delays, and delay attributable to EPA and DEC in promulgation of necessary guidance And regulation.

Outreach

DEC shall attempt to be thorough in its mail notification and continue its public affairs outreach so that as many facility managers subject to this Subpart are advised of the requirements. This is all the more important because some previously Part 201 exempt emission point types are now subject to RACT requirements. In particular the Small Business Assistance Program might help in spreading compliance requirement information and assistance to this category of subject sources. The telephone number for the Environmental Facilities Corporation (EFC) is 1-800-882-9721.

Innovative and Developmental Technology

As discussed previously, DEC shall exercise its enforcement discretion to foster greater and lower cost reductions by granting additional time to attain compliance to facility owners meeting the Criteria set forth in this guidance.

Lastly, consistent with previous articulations of Departmental policy, non-compliance that is not specifically excused as set forth above, whether because of willful delay or a lack of management commitment to timely and expeditious compliance or other Reasons, will be dealt with in terms of the factors set forth in ECL §71-2115 and the DEC Penalty Policy. Assessment of both a penalty for any economic benefit from non-compliance and a gravity component penalty proportionate to the level of injury to the environment and injury to the regulatory system is required under these circumstances.

III. Strategy

The central strategy of the Department in conducting the Compliance assurance and enforcement program for Subpart 227-2 will be use of the compliance plans due March 15, 1994. The Compliance plans are decision documents for the issuance of either a Compliance Schedule Letter (CSL) or an Enforcement Compliance Schedule Letter (ECSL). These letters (CSL or ECSL) shall be issued in each and every instance where a compliance Plan is submitted. A CSL is to be issued by a RAPCE of the Chief of the DAR Combustion Source Section in instances where the compliance plan shows compliance on or before May 31, 1995. An ECSL shall be issued by a Regional Attorney or the Compliance Counsel for Air Resources whenever the compliance plan shows compliance beyond May 31, 1995. The Regional issuance of these documents shall be the normal occurrence and central office issuance shall occur in cases where multi-regional systems are involved or by special arrangement with the Regional office. An Example of each type of letter is attached.

Compliance plans should be the initial point of contact with the DEC in demonstrating intentions to comply with the rule. Failure to Submit a Compliance Plan by March 15, 1994 could automatically result in termination of a Certificate to Operate pursuant to Section 227-2.3. It is critical that DEC use every opportunity to advise sources subject to the Compliance Plan submittal requirement to make the best submittal possible by March 15, 1994 or as soon as possible. If for some reason a Compliance Plan is not submitted by march 15, 1994, the Department will commence enforcement action to obtain the submission of the compliance plan or an order to shut down the facility at the end of any existing permit term or within 90 days of issuance of the complaint, which ever is sooner. DEC staff shall be liberal in accepting revisions to Compliance Plans. Sources which have not submitted compliance plans by May 31, 1994 should be the subject of staff referral for issuances of a complaint and/or a Motion for order without hearing pursuant to 6 NYCRR Part 622.12. a Penalty of $50.00 per day beyond March 15 should be the minimum penalty sought in these actions. Protracted non-compliance should result in actions to seek shut downs and higher penalties.

DEC may accord applicants up to 120 days additional Time past May 31, 1995 to install control equipment and Demonstrate compliance with emission limitations without requiring execution of an order where a Compliance Plan sets forth a reasonable basis to go past the May 31, 1995 deadline. Submittal of a Compliance Plan by July 15, 1994, the regulatory deadline for a permit to construct application submittal, should be Considered the end-date for granting of the grace period otherwise Afforded facilities under this Enforcement Directive. DEC's own Enforcement resources should be devoted to identifying and pursuing non-compliance that is expected to be long term or based on a failure to move as expeditiously as possible. DEC's discretionary use of the 120 day grace period should drastically reduce the number of sources subject to enforcement action.

DEC may delay enforcement in those situations where it is convinced by the presentation of a compliance plan that demonstrates:

  1. A strong likelihood for the development of technology achieving at least 15 percent greater NOx control than would otherwise be available through the application of readily available RACT NOx control equipment and technology; and
  2. An expeditious schedule of technology development and innovative Capital investment; and
  3. That there is a clear indication of meaningful fiscal commitment to the technology program.

In such cases, DEC may delay action to obtain an order for up to 18 months while the source installs and Demonstrates compliance utilizing innovative/developmental Emissions control technology. The ECSL must clearly set forth monitorable decision dates for switching to a control strategy that involves installation of readily available RACT should the innovative technology not prove out. Such a decision point must occur within the six months prior to the May 31, 1995 deadline. Should such a decision point be reached where it is decided that Compliance will be attained by either conventional RACT or innovative technology that will require additional time past September 30, 1996, then such a compliance schedule must be embodied in an administrative or court order. Staff shall take all necessary steps to obtain such an order either upon consent or after adjudication. No penalty consequences will flow out of good faith efforts which fail to achieve the sought after emission control. Additionally, documented and allocated expenditures that went to develop innovative technology which ultimately did not prove out may be applied to offset the per ton NOx penalties specified below for protracted non-compliance Contemplated in an ECSL.

Small boilers (50 million Btu per hour and smaller) are not required to submit compliance, capping and shutdown plans as per Section 227-2.3. However, owners of these units will need to decide whether they want to:

  1. cap-out of the NOx RACT requirements, or
  2. shutdown the units, or
  3. comply with tune-up requirements under the regulation.
  1. Those owners which opt to cap-out to avoid NOx RACT requirements will need to inform the regional office of their decision to cap-out by July 15, 1994 and enter into federally enforceable permit restrictions to limit operation by May 31, 1995. The certificate to operate application must be submitted by February 15, 1995.
  2. Those owners which opt to shutdown their units to avoid NOx RACT will need to inform the regional office of this decision by February 15, 1995 and render these units inoperable by may 31, 1995.
  3. Those owners which choose to comply with the regulation, therefore remain a major facility for this regulation and for the operating permit program, will only need to perform an annual Tune-up. The first of these tune-ups is required by May 31, 1995. guidance on the small boiler tune-up will be issued subsequent to this memorandum. These source owners need to apply for a certificate to operate by February 15, 1995.

Failure of owners to comply with the requirements to obtain a certificate to operate or to apply for the same in a timely fashion should be treated consistent with DEC EGM II.9 Appendix IV which Deals with "Permit to Construct and Certificate to Operate violations - 6NYCRR Part 201 -." This guidance sets forth minimum penalty guidance as follows:

Minimum Penalty Guidelines
CIRCUMSTANCE RESPONSE
Source owner voluntarily applies for Permit to Construct and/or certificate to Operate after source is in operation. $150 - $300 plus regulatory fees avoided.
Source owner applies for Permit to Construct within 30 days of issuance of an NOCD or ECAT requiring either abatement or application within 30 days. $300 - $500 per permit to construct per emission point plus $300 - $500 per certificate to operate per emission point plus outstanding regulatory fees avoided in administrative settlements. Actions going to trial should be prosecuted for higher penalties as appropriate.
Source owner fails to apply for requisite Permit to Construct and/or Certificate to Operate after issuance of 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 emission point per violation plus regulatory fees avoided. Actions going to trial should be prosecuted for higher penalties as appropriate.

Complete compliance plans submitted should result in issuance by DEC of a CSL or an ECSL. A CSL or an ECSL should:

  1. Acknowledge receipt of the compliance plan;
  2. Recapitulate the basic implementation schedule for compliance as set forth by the source owner, whether that is for the obtaining of an enforceable permit conditions to De-rate "cap out" the source, to cease operation, switch fuels, install control equipment and control technology by May 31, 1995 or as a last resort seek alternative Emission Limits;
  3. State that adherence to the schedule in the CSL or ECSL, including the schedule dates for submission of the Permit to construct and the Certificate to Operate will be monitored by DEC compliance staff and that adherence to the schedule will ensure Against any enforcement action by DEC;
  4. Set forth terms for modifying the CSL or ECSL since, it should be noted that Compliance Plans may be altered or revised by the source owner as circumstances require. However, such revision should be submitted to DEC consistent with Air Program Memo (94-AIR-43). If the revision will still result in compliance by May 31, 1995 and Where control technology must be installed, then a revised CSL Should be issued without delay to update the schedule. If the revised Compliance Plan shows compliance after May 31, 1995, then staff should examine the proposal carefully to ascertain if the source owner's schedule is as expeditious as possible. If the revised Compliance Plan is accepted an ECSL shall be issued.

Where the Compliance Plan shows compliance on or before September 30, 1995, DEC staff has the discretion to issue an ECSL Accepting a schedule for the most rapid installation of RACT or better RACT controls pursuant to an ECSL which does not require the payment of penalties provided that the source applies for a Permit to Construct with a schedule of compliance similar to the ECSL Schedule dates by July 15, 1994. Where the compliance plan submitted shows compliance after September 30, 1995, DEC should issue an ECSL to the source indicating that if the source owner accepts the dates and schedule as set forth in ECSL and a follow-up consent Order requiring the payment of economic benefit penalty at a specified rate of dollars per ton of NOx(3) emitted above that which would be allowed following installation of RACT then no further DEC enforcement action seeking assessment of a gravity component penalty will ensue. The deadline for execution of an Order on Consent should be set forth in the ECSL and should be no later than September 30, 1994. Failure to sign a Consent Order by that date will result in filing of a Notice of Hearing and complaint by December 31, 1994 with a hearing date no later than February 1, 1995 seeking assessment of penalties that come within a fifty percent of a figure of $10,000 per ton of NOx emitted over the nominal NOx RACT emission rate permissible under Subpart 227-2 until such time as there is full control pursuant to Subpart 227-2 or cessation of the facility's combustion activity.

Where a compliance plan is submitted in a timely fashion but proposes meeting actual emission requirements after May 31, 1995 where such plan is coupled with an owner commitment to engage in an innovative technology and control development program which has A strong likelihood of achieving at least 15 percent greater control Than that which is minimally required by Subpart 227-2, then such owner may be issued an ECSL incorporating such a schedule, provided full compliance is achieved by November 1996.

IV. Conclusion

In summary, DEC is committed to requiring the greatest achievable NOx control in the quickest time possible in compliance with all applicable laws. Economic benefit and gravity component based penalties should be sought in instances of protracted delay consistent with the factors set forth in the Civil Penalty Policy and ECL §71-2115 except for delays specifically excused by this EGM.

DATED: April 15, 1994
Albany, New York

Langdon Marsh

Langdon Marsh,
Acting Commissioner of Environmental Conservation


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

Draft Model CSL

XYZ Corporation
100 First Street
ABC Town, NY

RE: NOx RACT (6 NYCRR Subpart 227-2)
Compliance Schedule letter

Dear NOx RACT Source:

This letter constitutes a compliance schedule letter issued by this Department pursuant to its Enforcement Guidance Memorandum II.9 Appendix 6 with respect to your submission of a compliance plan pursuant to 6 NYCRR Subpart 227-2.3. The Department has reviewed your compliance plan and has found that on the basis of the compliance dates and schedule of implementation you have set forth that the following compliance schedule and milestone dates for completion of the below listed activities is acceptable under the regulations since ultimate compliance date set forth at 6 NYCRR subpart 227-2 Section 4 will be attained.

List critical compliance dates and events per the Compliance plan and any follow up telephone calls or correspondence here.

So long as you adhere to the above-noted schedule, you will be in compliance with Subpart 227-2. Should you wish or otherwise need to alter this schedule, you are to contact the undersigned as soon as possible. Extension of the dates here may require formal Enforcement action including the assessment of penalties in accord With Departmental enforcement policy and New York Environmental Conservation Law Section 71-2103 where there are substantial delays in compliance beyond the May 31, 1995 statutory deadline for compliance with NOx RACT control requirements.

Thank you for your timely compliance with these regulations. We wish you well in adhering to this schedule. Please advise us as soon as possible if you encounter difficulties in meeting the above noted schedule.

Sincerely,

NYSDEC Regional Air Pollution Control Engineer
(telephone number)

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

DRAFT Model ECSL

XYZ Corporation
100 First Street
ABC Town, NY

RE: NOx RACT (6 NYCRR Subpart 227-2)
Enforcement Compliance Schedule Letter

Dear NOx RACT Source:

This letter constitutes an enforcement compliance schedule letter issued by this Department pursuant to its Enforcement guidance Memorandum II.9 Appendix 6 with respect to your submission of a compliance plan pursuant to 6 NYCRR Subpart 227-2.3. the Department has reviewed your compliance plan and has found that on the basis of the compliance dates and schedule of implementation you have set forth that the following compliance schedule and milestone dates for completion of the below listed activities [use Appropriate language below]

[ ] Shows compliance beyond the statutory and regulatory deadline of May 31, 1995. However, through the exercise of our enforcement discretion shows compliance by __________ and is presumptively the basis for the issuance of an Order on Consent Should you agree to such an Order. Such an Order would contain the following dates. [List key milestone dates and events for an order on consent here.]

[ ] Is acceptable because you have presented a clear and convincing case for the development of innovative technology for the installation of your control equipment in your system. [List key dates for conclusion of developmental program and key decision dates for abandonment of developmental approach and use of available RACT technology.]

So long as you adhere to the above-noted schedule, DEC will take no further enforcement action beyond that stated in the terms of this letter. Should you wish or otherwise require alteration of this schedule, you are to contact the undersigned as soon as possible. Any extension of the dates here may require further enforcement action including the assessment of penalties pursuant to ECL Section 71-2103. The penalties for first time violations are to $10,000 per day per violation.

Sincerely,

Regional Attorney

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

1. The severe non-attainment area designation of the state now consists of the nine counties of NYCMA area (Suffolk, Nassau, Kings, Queens, Richmond, New York, Bronx, Rockland and Westchester) and the seven towns in Lower Orange County.

2. Subpart 227-2 deals with the following source categories: 1. Very large Boilers (greater than 250 million BTU per hour heat input), 2. large boilers (greater than 100 and less than or equal to 250 million BTU per hour input), 3. Mid-size boilers (greater than 50 and less than or equal to 100 million BTU per hour input), 4. Small boilers (greater than 20 and less 50 million BTU per hour input), 5. Combustion turbines, 6. Internal combustion engines, and 7. other combustion sources.

3. The estimated cost for RACT controls ranges from $450 to $5,000 per ton of NOx controlled. Hence, DEC orders should at least seek to recoup this cost as economic benefit in instances of protracted non-compliance which are not otherwise Attended by willfulness or other factors which warrant assessment of a gravity component penalty under the Civil Penalty Policy and ECL Section 71-2115. DEC will propose orders based on its judgement of RACT costs saved, but the respondent to an enforcement action is free to put forward its clear and convincing documentation of actual costs.

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