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DEE-5: Air Pollution Control Enforcement Policy - Appendix VII (includes 5/31/95 revision)

General Process Emission Sources
- 6 NYCRR Part 212, Section 212.10 -

Byproduct Coke Oven Batteries
- 6 NYCRR Part 214, Section 214.9 -

Iron and/or Steel Processes
- 6 NYCRR Part 216, Section 216.5 -

Portland Cement Plants
- 6 NYCRR Part 220, Section 220.6 -

I. Introduction and Purpose

This Appendix to the Air Pollution Control Enforcement Guidance Memorandum (EGM) establishes the Department's enforcement strategy for addressing noncompliance with 6 NYCRR Sections 212.10, 214.9, 216.5, and 220.6.

  • Section 212.10 - the regulation requires Reasonably Available Control Technology (RACT) at major facilities for oxides of nitrogen (NOx) and volatile organic compounds (VOCs) from Industrial processes which are required to obtain Certificates to operate pursuant to 6 NYCRR 201, and which are not regulated by other air pollution control Regulations, such as Parts 228, 229, 234, etc.
  • Section 214.9 requires facilities to review their NOx and VOC emission points to implement RACT.
  • Section 216.5 requires reasonably Available Control Technology (RACT) at major Facilities for oxides of nitrogen (NOx) and volatile organic compounds (VOCs).
  • Section 220.6 requires facilities to review their NOx emissions and implement RACT.

The regulations became effective September 22, 1994. These amendments to the regulation were mandated by the federal 1990 Clean Air Act Amendments which apply to the severe non-attainment areas and the Northeast Ozone Transport Region. For the New York City metropolitan Area and the lower Orange County Metropolitan area(1) a facility is "major" if it has a potential to emit more than 25 tons per year of NOx or VOCs. For the remainder of New York State only those facilities with the potential to emit more than 50 tons per year of VOCs or 100 tons of NOx are major Facilities(2).

This EGM sets forth DEC's enforcement responses for failure to submit the compliance plan due October 20, 1994, failure to Submit the Permit to Construct Application due December 20, 1994, and failure or delay in meeting emission limitations and other permit requirements required by May 31, 1995 by the regulations. 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.

As discussed above, the state regulations and the federal Clean air Act provisions upon which they are based (CAAA Sections 182 and 184) require that RACT be installed no later than May 31, 1995. In the past, VOC and NOx controls for older sources were not required on a regional scale and thus control equipment manufacturers have not Supplied VOC and 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 as 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.

Also, some entities may propose innovative approaches to compliance that are likely to bring substantial environmental improvement. DEC wishes to encourage NOx and/or VOC reductions beyond those minimums required by law and at lower costs. Improvements in control technology promise better, more reliable, and cheaper compliance. DEC shall exercise its enforcement discretion consistent with the Civil Penalty Policy and fairness to the regulated community to encourage innovative technology solutions. Successful innovation lowers the overall Societal costs of environmental control and thereby advances New York's economic and environmental interests. DEC will structure its relationship with sources venturing into the areas of technology advancement so that there is ultimate compliance with regulations, but also so that there is no economic benefit from non-compliance.

Of course, firms must find an economic incentive to risk development costs to advance technology. Projected savings from new, innovative or developed technologies are not economic benefits of non-compliance. 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 and/or VOC emissions during the temporary period of delay and is risking substantial development 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.

Non-compliance that is not specifically subject to this EGM's consideration of delays, 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 Civil Penalty Policy(1). 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.

II. Applicability

  1. Population of Sources

    Many of the major NOx and VOC facilities will be Controlled completely or partially under Parts 227, 228, 229, 233 or 234. Hundreds of facilities in the asphalt pavement, chemical, electronic component, paint, photographic supply, and plastics industries are major VOC facilities which will be subject to Part 212. The State's wholesale bakeries must also be considered as potential "major" facilities, but since these facilities have been Exempt from Part 201 requirements, their actual emissions are unknown.

    Parts 214, 216 and 220 generally apply to large heavy industries, and the amendments to these regulations are not expected to affect small business in New York State.

  2. Bakery Applicability of Part 212

    The 1994 amendments to Part 201 removed the exemption for wholesale bakeries from registering as air pollution sources. DEC has issued Air Guide 31, "Implementation of Part 201 and Part 212 Permitting and Reasonably Available Control Technology Requirements for bakeries", which deals with the regulatory requirements for wholesale bakeries. Retail bakeries will continue to be exempt from having to file for a certificate to operate. Approximately 170 wholesale bakeries in New York State are required to evaluate their emissions to see if they are required to submit a Compliance plan(4) if they:

    • Produce a yeast product such as breads, rolls, English muffins, bagels and Danish (bakeries producing only cookies or crackers are exempt); and
    • Sell their product off site; and
    • Have the potential to emit
      • 50 Tons or more per year VOC emissions in upstate New York or
      • 25 tons per year VOC emission downstate operating 24 hours per Day over 365 days per year for a total of 8760 hours per year.

    The exemption from Part 201 permitting requirements for wholesale bakeries is limited to "process, exhaust or ventilating systems in bakeries or restaurants preparing food only for on-site consumption or on-site retail Sale" (Section 201.6(1)). There are a number of facilities whose off-site sales represent only a small fraction of their sales. Until such time as revisions to Part 201 are promulgated that more precisely define the regulatory exemption for small scale off-site retail manufacturing facilities(5), DEC shall use Standard Industrial Codes (SIC codes) to distinguish facilities which engage "primarily" in wholesale manufacturing from those which "primarily" engage in retail bakery operations. In general, commercial bakers (SIC 2051), that bake yeast-raised products are clearly regulated by Part 201, and Section 212.10 may also apply. Retail bakers (SIC 5461) are not currently exempt from Part 201 if the facility sells any products wholesale, but the Department is considering exempting bakeries which sell over 50% of their production on their premises. However, some retail grocery store Chains (SIC 5411) may have a centralized bakery which qualifies as a major facility. Such facilities may in fact have emissions worth controlling and are legally ineligible for the exemption under Part 201, if they produce products for off-site consumption or off-site retail sale. DEC shall exercise its enforcement discretion to constrain itself from seeking any penalties for bakeries which are now legitimately classified in the SIC system as SIC 5461 facilities. In any instance where staff wishes to examine the emissions potential of a SIC 5461 facility, such facility shall be given 90 days notice to submit certificates to operate in order to Deal with applicability issues through the permit process.

III. Other Guidance Documents

A potential "major" facility may be able to eliminate RACT applicability by using enforceable conditions on certificates to operate that reduce potential emissions below the 25, 50 or 100 to threshold. (See Air Guide 10 on federally enforceable permits.)

Maximum costs of RACT are defined in Air Guide 20. Air Guide 20 should be used by facility owners to apply for variances for emission points which cannot comply with the allowable emission rates at a reasonable cost.

IV. Outreach

DEC shall attempt to be thorough in its mail notification and continue its public affairs outreach so that facility managers subject to these Sections 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 (SBAP) might help in disseminating compliance requirement information and assistance to this category of subject sources. The telephone number for the SBAP Hotline at the Environmental Facilities Corporation (EFC) is 1-800-882-9721.

V. Strategy

  1. Use of Compliance Plan Submittals

    The central strategy of the Department in conducting the Compliance assurance and enforcement program for the regulations will be by use of the compliance plans due October 20, 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 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. Regional issuance of these documents shall be the normal occurrence and central office issuance shall only occur by special arrangement with the Regional office. An example of each type of letter is attached.

    Compliance plan submission should be the initial contact with the DEC in demonstrating intentions to comply with the rule. DEC staff shall be liberal in accepting revisions to Compliance Plans. 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 October 20, 1994 or as soon as possible. If for some reason a Compliance Plan is not submitted by October 20, 1994, the Department shall issue Notices of Compliance determinations (NOCDs) to known sources to encourage the submission of the compliance plan. Bakeries subject to Part 212 (as discussed in Section II.B of this EGM) that have not Submitted compliance plans by December 20, 1994 should be referred by Air program staff for issuance of a Complaint and/or a Motion for Order Without Hearing pursuant to 6 NYCRR Section 622.12. Facilities other than bakeries subject to Section 212 which are subject to RACT requirements in the regulations covered by this EGM are provided an additional 30 days until January 20, 1995 to: 1) submit Compliance Plans and Permit to construct Applications; and 2) avail themselves of the 180 days additional time past May 31, 1995 to achieve compliance without entering into an order. A penalty of $25.00 per day beyond October 20, should be the minimum penalty sought in these actions. Protracted non-compliance should result in actions to seek higher penalties. Delays beyond March 31, 1995 should result in issuance of complaints that seek expeditious compliance orders, ordered schedules of compliance and assessed penalties reflective of Economic benefit, as well as gravity component considerations.

    DEC may accord applicants up to 180 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 exceed the May 31, 1995 deadline. Submittal of a Compliance Plan by December 20, 1994, the regulatory deadline for submittal of a permit to construct application, 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 act as expeditiously as possible. DEC's discretionary use of the 180 day grace period should Drastically reduce the number of sources subject to enforcement action.

  2. Issuance of CSL - Model Letter A and ECSL Model Letters B and C

    Complete compliance plan submittal 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 either: 1) the obtaining of enforceable permit conditions which reduces the facility potential emissions below the major facility thresholds by may 31, 1995, or 2) installing control equipment and/or control Technology, or requesting an economic or technical variance.
    3. State that adherence to the schedule in the CSL or ECSL, including the scheduled dates for submission of an application for a Permit to Construct and a 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. If the revision will still Result in compliance by May 31, 1995 and where control technology exists or will 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 (similar to Model Letter B) shall be issued, if the final compliance date is no later than December 1, 1995.

      Where the Compliance Plan shows compliance on or before December 1, 1995, DEC staff has the discretion to issue an ECSL (similar to Model Letter B) accepting a schedule for the most rapid installation of RACT 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 December 20, 1994. Where the compliance plan submitted shows compliance after December 1, 1995, DEC should issue and ECSL (similar to Model Letter D) 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 VOC or NOx(6) 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 December 31, 1995. Failure to sign a Consent Order by that date will result in filing of a Notice of Hearing and complaint by January 31, 1996 with a hearing date no later than March 1, 1996 seeking assessment of penalties that come within a fifty percent of a figure of $10,000 per ton of NOx or VOC emitted over the nominal NOx and VOC RACT emission rate permissible under the applicable regulation until such time as there is full control pursuant to the regulation or cessation of the facility's processing/production activity.

  3. Innovative Technology - ECSL - with an end date of 5/31/97. Model Letter D.

    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 and/or VOC control than would otherwise be available through the application of readily available RACT NOx and/or VOC control equipment and technology; and
    2. A 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 24 months (i.e., up to May 31, 1997) 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 May 31, 1997, 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 VOC/NOx penalties specified below for protracted non-compliance contemplated in an ECSL.

VI. Conclusion

In summary, DEC is committed to achieving the greatest NOx and VOC control in the shortest time possible in compliance with all applicable laws. Economic benefit and gravity component based penalties will 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: November 29, 1994

Albany, New York

Langdon Marsh

Langdon Marsh
Commissioner of Environmental Conservation

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

Draft Model Letter A

XYZ Corporation
100 First Street
ABC Town, NY

RE: NOx/VOC RACT (6 NYCRR Part 2___, section 2___.___)
Compliance Schedule letter

Dear NOx/VOC RACT Source:

This letter constitutes a compliance schedule letter issued by this Department pursuant to its Enforcement Guidance Memorandum II.9 Appendix VII with respect to your submission of a compliance plan pursuant to 6 NYCRR Subpart 2___.___. The Department has reviewed your compliance plan. The compliance dates and schedule of implementation you have set forth form the basis for the following compliance schedule and milestone dates for completion of the listed activities. Your compliance plan is acceptable since Compliance requirements as set forth at 6 NYCRR Section 2___.___ will be attained on time.

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 Section 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 for compliance with NOx/VOC 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.

Very Truly,

NYSDEC Regional Air Pollution Control Engineer
telephone #

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

Draft Model Letter B
ECSL

XYZ Corporation
100 First Street
ABC Town, NY

RE: NOx/VOC RACT (6 NYCRR Part 2___.___)
Enforcement Compliance Schedule letter

Dear NOx/VOC RACT Source: This letter constitutes an Enforcement compliance schedule letter issued by this Department pursuant to its Enforcement Guidance Memorandum II.9 Appendix VII with respect to your submission of a compliance plan pursuant to 6 NYCRR Section 2___.___. The Department has reviewed your compliance plan. The dates you have set forth form the basis for the following compliance schedule and milestone dates.

Compliance Schedule
Item Milestone Dates
Apply for Permit to Construct / /
Submit Interim Limits Control Plan and Proposed Limits / /
Issue Purchase Orders / /
Install Control Devices / /
Demonstrate compliance with 6 NYCRR §2___.___ / /

So long as you adhere to the above-noted schedule, DEC will take no enforcement action. Should you wish or otherwise require Alteration of this schedule, you are to contact the undersigned as soon as possible. Failure to adhere to this schedule or any other schedule that has been placed into an enforcement order will result in issuance by the undersigned of a notice of hearing and complaint. Any such complaint will seek an adjudicated commissioner's Order assessing punitive sanctions in addition to a penalty recouping any economic benefit from non-compliance as appropriate pursuant to Environmental Conservation Law Section 71-2103. The penalties for first time violations are up to $10,000 per day per violation.

Very truly,

Regional Attorney or Compliance Counsel for Air Resources

CC: RAPCE

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

Draft Model Letter C
ECSL

XYZ Corporation
100 First Street
ABC Town, NY

RE: NOx/VOC RACT (6 NYCRR Part 2___.___)
Enforcement Compliance Schedule Letter

Dear NOx/VOC RACT Source:

This letter constitutes an enforcement compliance schedule letter issued by this Department pursuant to its Enforcement Guidance Memorandum II.9 Appendix VII with respect to your submission of a compliance plan pursuant to 6 NYCRR Section 2___.___. The Department has reviewed your compliance plan. the Dates you have set forth form the basis for the following compliance schedule and milestone dates.

Compliance Schedule
Item Milestone Dates
Apply for Permit to Construct / /
Submit Interim Limits Control Plan and Proposed Limits / /
Issue Purchase Orders / /
Install Control Devices / /
Demonstrate compliance with 6 NYCRR §2___.___ / /
Enter into a Consent Order which includes payment of economic benefit
penalties, if any, but not punitive penalties.
/ /

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. Failure to adhere to this schedule or any other schedule that has been placed into an enforcement order will result in issuance by the undersigned of a notice of hearing and complaint. Any such complaint will seek an adjudicated Commissioner's order assessing punitive sanctions in addition to a penalty recouping any economic benefit from non-compliance as appropriate pursuant to Environmental Conservation Law Section 71-2103. The penalties for first time violations are up to $10,000 per day per violation.

Very truly,

Regional Attorney or Compliance Counsel for Air Resources

CC: RAPCE

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

Draft Model Letter D
ECSL Innovative Technology

XYZ Corporation
100 First Street
ABC Town, NY

RE:NOx/VOC RACT (6 NYCRR Part 2___, Section 2___.___)
Compliance Schedule Letter

Dear NOx/VOC RACT Source:

This letter constitutes an enforcement compliance schedule letter issued by this Department pursuant to its Enforcement Guidance Memorandum II.9 Appendix VII with respect to your submission of a compliance plan required by 6 NYCRR Subpart 2___.___. The Department has reviewed your compliance plan and has found it 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 development program and key decision dates for abandonment of development approach and use of available RACT technology.]

So long as you adhere to the above-noted schedule, DEC will take no enforcement action. 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 up to $10,000 per day per violation.

Very Truly,

Regional Attorney or Compliance Counsel for Air Resources

CC: RAPCE

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. Although it is not relevant to applicability under sections 212.10 and 216.5, a facility is also "major" if it has the a potential to emit 10 or more tons per year of any single Hazardous Air Pollutant (HAP), or 25 tons per year of any combination of HAPs contaminants, as set forth in CAAA Section 112(b).

3. State air quality control fees are established under ECL §72-0302. Compliance with these payment requirements is neither waived or extended by the exercise of enforcement discretion discussed in this document.

4. Bakeries subject to Section 212 are also required to submit applications for Certificates to Operate for current Sources at their facilities by October 20, 1994. A similar extension of this regulatory deadline to December 20, 1994 is provided by this guidance document.

5. Substantial revisions to Part 201 will be proposed in November of 1994 which will modify the list of exempted sources. It is anticipated that DEC staff will propose to modify the exemption for bakeries to exclude from Part 201: process exhaust or ventilating systems in bakeries or restaurants which derive over Fifty percent of their sales revenue from preparing food for on-site consumption or on-site retail sale.

6. The maximum cost for RACT controls is $3,000 per ton of VOC upstate and $5,000 per ton of VOC downstate, and $3,000 per ton NOx statewide, per Air Guide 20. DEC orders should at least seek to recoup the economic benefit of delayed compliance 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.

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

Amendment to Appendix VII

I. Introduction and Purpose

This amends the Air Pollution Control Enforcement Guidance Memorandum and establishes the Department's enforcement Strategy for addressing noncompliance with the May 31, 1995 deadline for 6 NYCRR Sections 212.10, 214.9, 216.5, and 220.6 with regards to the Consequences of failure to achieve compliance by December 1, 1995. In addition, it establishes the Department's enforcement Strategy for addressing noncompliance with the May 31, 1995 deadline for sources subject to 6 NYCRR Sections 227-2.4, 228.1, 229.1, 233.1 and 234.1, that have timely submitted and attempted to follow RACT compliance plans.

The Department is aware that, in many cases, all practicable efforts have been made by source owners and/or operators to comply with the May 31, 1995 deadline for installation of reasonably available control technology (RACT). Examples of good faith efforts made by the owners and/or operators of sources subject to RACT include:

  1. Searching unsuccessfully for a lengthy period of time for compliant formulations to utilize in production. This may involve a Period of experimentation with such formulations, which resulted in products that are unacceptable for sale.
  2. Inability to switch over to compliant formulations due to the vendor's failure to timely supply such formulations.
  3. Inability to obtain low NOx burners, or other types of control equipment, due to vendor supply shortage.
  4. Expected delay in the Department's completion of processing applications for federally enforceable emission caps, RACT variance Applications, and/or revisions to the State Implementation plan.

II. Department's response to efforts to comply by March 31, 1995

For those sources that have attempted to comply in good faith, the Department is extending the RACT compliance deadline for the above referenced regulations to December 1, 1995. Source owners and/or operators who are making efforts to comply but will not make the May 31, 1995 deadline may request an extension until December 1, 1995 by submitting a written request to the Regional Air pollution Control Engineer, including a statement or reasons for the failure to meet the May 31, 1995 deadline (example attached as Letter A). The written request should be submitted as soon as possible, as a further indication that the source owner or operator is aware of the RACT requirements and is making a good faith effort to comply. The source owner or operator should include a schedule for achieving compliance prior to December 1, 1995. The Regional Air Pollution Control Engineer will Respond with a letter approving or denying the extension request (example attached as Letter B).

The Department will reevaluate the RACT compliance situation prior to December 1, 1995 to develop an approach for those sources that cannot meet this deadline. Currently, the Department anticipates that owners and/or operators of sources that will not achieve compliance until after December 1, 1995 will be required to Submit a compliance schedule as a modification to the source's certificate to operate. The modified certificate may be submitted to EPA as a revision to the SIP.

III. Department's response to failure to try to comply

Source owners and/or operators that have made no effort to comply with RACT requirements by May 31, 1995 are not eligible for an extension. The only exception to this is for source owners and/or operators that are participating in the small business amnesty program (contact the Regional Air Pollution Control Engineer to determine eligibility).

Dated: May 31, 1995

Albany, New York

Michael D. Zagata

Commissioner of Environmental Conservation

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

Extension Letter A

Date

Regional Air Pollution Control Engineer
New York State Department of Environmental Conservation
Regional Office

Dear _________________________:

I am writing to notify you that the facility listed below will not be in compliance with _______________________ (state appropriate RACT regulation, i.e., 227-2, 228, 229, 233, 234) by May 31, 1995.

Facility name

Facility address

I have attempted to comply with the regulation by taking the following steps:

_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

I request that the Department grant me until ___________________________________ (fill in date prior to December 1, 1995) to comply.

Sincerely,

Source Owner and/or Operator

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

Extension Letter B

Date

Source Owner and/or Operator
Facility Address

Dear _________________________:

I have reviewed your request for an extension of time to comply with Part _______________________ (fill in applicable RACT requirement). I approve the extension to _____________________ (date prior to December 1, 1995).

Please notify me in writing if you are unable to meet this date, and include an explanation of why. If you will need beyond December 1, 1995 in order to comply, I will advise you of the next steps that are available.

Sincerely,

Regional Air Pollution Control Engineer

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