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DEE-5: Air Pollution Control Enforcement Policy

Commissioner Policy

The DEC Policy System
Department ID: DEE - 5
Program ID: N/A
Issuing Authority: Henry G. Williams, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Henry G. Williams
Date: 20 December 1985
Issuance Date: 20 December 1985
Latest Review Date (Office Use):

Consistent with the Civil Penalty Policy; Order on Consent Enforcement Policy; Record of Compliance; Natural Resource Damages and Small Business Self-Disclosure Policy:

  1. The policies and procedures set out in this document are intended solely for the use and guidance of DEC personnel. They are not intended to create any substantive or procedural rights, enforceable by any party in administrative and judicial litigation with the State of New York. DEC reserves the right to act at variance with these policies and procedures.
  2. Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
  3. Pursuant to §4547 of the Civil Practice Law and Rules of the State of New York, all evidence or conduct of negotiations or settlement are inadmissible as evidence as proof of liability for or invalidity of the claim which is disputed as to either validity or amount of damages.
  4. The penalty amounts calculated with the aid of this document in adjudicated cases must, on the average and consistent with consideration of fairness, be significantly higher than the penalty amounts which DEC accepts in consent orders which are entered into voluntarily by respondents.

I. Purpose

This document establishes the policies and procedures by which the Department of Environmental Conservation ("DEC") is to insist upon compliance with the New York State law, regulations, and permits which control air pollution.

II. Background

State law to prevent and control air pollution is found in Article 19 of the Environmental Conservation Law ("ECL"). Section 19-0301 gives DEC the power to promulgate regulations which require permits to construct and certificates to operate for sources of air pollutants. Section 19-0301 also allows DEC to establish emission limitations for air contamination sources and to promulgate ambient air quality standards.

A State Implementation Plan ("SIP") is required by the Federal Clean Air Act as amended (42 U.S.C. - et. seq.) to improve air quality in areas where standards are not being achieved. A SIP may require new regulations which compel existing sources to reduce emissions.

New York State has been delegated responsibility to administer three Federal regulatory programs. Prevention of Significant deterioration ("PSD") applies to major facilities in areas where ambient air quality standards are attained. New Source performance Standards ("NSPS") apply to selected categories of new emission sources regardless of ambient air quality status. National Emission Standards for Hazardous Air pollutants ("NESHAP") are the Federal toxic regulations. These programs are implemented by DEC using the permitting authority provided in Section 19-0301 of the ECL.

In addition to establishing enforcement policies with respect to the foregoing statutes and regulations, this Enforcement Guidance Memorandum covers all air enforcement-related activities undertaken by county or city governments as the result of delegations made by DEC for implementation of the air program.

III. Objectives

DEC has a statutory responsibility to obtain compliance with New York's air pollution law. Much has been done to obtain and maintain compliance. Enforcement actions comprise but one phase of the regulatory process.

Enforcement is necessary for legal, environmental, health, and for economic and social fairness reasons. In sum, the objectives of DEC's air enforcement program are: to demand compliance, to establish an "enforcement presence" and to provide Consistency and unity to sanctions imposed for non-compliance.

Detailed Discussion of Policy Objectives

  • Objective l: Demand, and whenever necessary compel through the enforcement process, compliance with all Emission limitations and other conditions mandated by law.

The key measure of this Department's performance in air pollution control is to maintain or improve air quality to protect the public health and welfare. In order to achieve those objectives, it is necessary to take action against violators. The purpose of any action is to encourage and obtain adherence to law and/or where necessary through the enforcement process to penalize improper conduct.

DEC will use the entire spectrum of its statutory powers to enforce compliance with air pollution control laws. When using its enforcement powers, DEC's imposition of penalties, permit Suspensions, permit revocations, construction bans, etc. should be Calculated in the first instance to obtain expeditious compliance And to make compliance more attractive and less expensive than non-compliance. In order to accomplish the compliance objectives, it is necessary to follow through and demonstrate the will and authority of the Department to have sanctions imposed in appropriate cases.

The ECL provides for the assessment of criminal, civil and administrative penalties and other sanctions where violations occur. Culpable mental state or actual environmental harm need not be proven in order to take enforcement action. However, DEC must utilize its enforcement resources in a manner calculated to obtain the greatest environmental benefit with its limited resources. It may be impractical and counterproductive to environmental protection to obtain penalties and other sanctions in each and Every instance of violation.

However, there are at least five circumstances where DEC Enforcement personnel must seek the assessment of payable penalties and other sanctions.

  1. Where a facility or person has engaged in willful, bad faith, or negligent conduct, which has resulted in a persistent or preventable violation, punitive penalties for this conduct must be sought. Unpermitted emission violations are to receive special Scrutiny for this type of conduct.
  2. Where a facility or person has gained economic advantage by non-compliance while failing to take responsible steps towards compliance, a penalty must be sought and related to the size of the unlawful economic benefit.
  3. Where tangible public health and/or environmental damages have Been detected, a penalty must be sought. The amount of the payable penalty should be related to the size of the damage and the Culpability of the respondent, among other factors.
  4. Where substantial administrative or judicial efforts are required to bring a source into compliance with well-defined legal obligations, a penalty must be sought which is related to these Costs.
  5. Where a violation is included in one of the classes which require a penalty according to the timely and appropriate enforcement guidance which is part of the State/EPA Enforcement agreement (Appendix I) a penalty must be sought.

A penalties guidance document in the Enforcement Policy Series will be issued shortly. This guidance will enunciate the factors that Administrative Law Judges and I will utilize in assessing penalties and sanctions after hearing. This guidance will be applicable to Orders on Consent as well. The penalties guidance document will provide direction on the use of future stipulated penalties, suspended penalties and the circumstances where penalties may be inappropriate. While Regional and case-specific factors may justify a wide range of penalty actions, DEC will Establish basic approaches to penalties in order to provide Consistency and effectiveness to its environmental enforcement program.

The ECL provides civil and criminal penalties for practically every violation. There is an extremely broad range of penalties and relief which may be sought under the ECL. Each and every prohibition and potential basis to allege violations should be Considered in preparing case reports so that adequate relief may be fashioned in terms of penalties and corrective action.

Administrative enforcement through consent orders and orders issued after hearing remains the primary means for taking enforcement action.

However, the use of the criminal and civil judicial processes must not be overlooked in choosing compliance/enforcement Strategies. Where the elements of criminal violations can be sustained, criminal enforcement by issuance of appearance tickets by Environmental Conservation Officers and Forest Rangers or through referral to the Attorney General, District Attorney, or United States Attorney must be considered.

  • Objective 2: Establish a credible "enforcement presence" in the mind of the regulated community so that non-compliance is deterred and so that the regulatory process is, and is perceived as, fair and equitable to all.

DEC will make every effort to communicate to the public and regulated community our will and capability to undertake enforcement cases.(1)

To establish an "enforcement presence", DEC should address cases that fit into an overall design. By focusing on gaining compliance by significant violators, DEC will achieve the greatest environmental results with available regulatory resources. (The criteria for "significance" are delineated in the guidance on timely and appropriate enforcement response which is part of the DEC/EPA Enforcement Agreement and included as Appendix I of this memorandum). By publicizing these actions, the Department will Create and maintain a reputation of competent and firm enforcement. However, no class of non-compliance will be immune from enforcement attention.

DEC shall continue to develop and utilize relationships with other enforcement agencies. DEC shall, wherever our personnel Resources allow, lend its technical support to these agencies by providing expert testimony and information to carry on air pollution control prosecutions, where such prosecutions are not inconsistent with this Department's own air pollution control Efforts.

The enforcement program will benefit from greater public awareness of air pollution control problems and the strategies which can be applied to any given problem. DEC legal staff will be prepared to discuss, in a general manner, alternative rights of actions which citizens may pursue on their own.(2)

  • Objective 3: Provide consistency and unity to the sanctions imposed. The Department's enforcement discretion shall be exercised in a consistent manner from Region to Region, except as constrained by identifiable Regional differences.

This Memorandum reiterates the premise and policy that the nine regional Offices of DEC will implement air enforcement programs which are subsets of a larger and coherent State program.

Timely and appropriate minimum enforcement responses have been and will continue to be developed by DEC to ensure that New York's air enforcement program is applied uniformly throughout the State. Uniformity as to minimum enforcement responses is a matter of equity.

Furthermore, establishment of minimum uniform responses wilL Allow DEC personnel to deal swiftly and efficiently with most types of violations (unique circumstances will always arise). the existence of explicit State enforcement guidance will remove much of the time-consuming uncertainty as to the nature and quality of DEC's response to air violations. Flexibility remains for Regional personnel to craft appropriate responses to augment the minimum provided by Department-wide guidance. The Divisions of Air Resources, Law Enforcement, and Environmental Enforcement shall periodically review the practices of Regional personnel to recommend further adjustment to the enforcement response guides.

The development of the enforcement response guidance is a joint responsibility of the Divisions of Air Resources and Environmental Enforcement. The guidance, which will be consistent with the state/EPA Enforcement Agreement and to the extent possible with national guidance, is to be incorporated into the Division's air Guide Series after legal review by the Division of Environmental Enforcement. Consultation with the Division of Law Enforcement should precede finalization of any guidance where enforcement by Environmental Conservation Officers is legally possible.

Attached to this memorandum is the section of the State/EPA enforcement Agreement dealing with timely and appropriate enforcement response (Appendix I). This Appendix is adopted as part of DEC's air enforcement policy. Facilities subject to this guidance must be in compliance, under order, scheduled for hearing, or referred to another enforcement agency within 120 days after an inspector concludes that a violation exists.

Violations of an emergency nature must proceed more rapidly than the 120 day timeline. These violations are a high priority workload Which must be addressed as expeditiously as possible. The emissions of highly toxic compounds which exceed the acceptable ambient level (AAL) in the Division of Air Resources' Air Guide-I are also high priority enforcement matters.

The 120 day timeline to deal with all other air control violations is appropriate as priorities allow. Note that as with the federal guidance for timely and appropriate response, the clock starts (i.e., day zero) 30 days after the date of the inspection or receipt of a report which first identifies the violation. A three-class system of priorities is hereby established. Priority rankings within each class are provided:(3) (4)

  • Class I - High Priority Violations

    Resolve as expeditiously as possible, using summary abatement orders (Section 71-0301 of ECL) for imminent health danger or injunctions (Section 71-2107 of ECL) where necessary.

    1. Emissions which result in serious short-term public health impacts, such as emergency incidents which require hospitalization of residents.
    2. Emissions which result in serious long-term public health impacts, such as NESHAP violations or high toxicity compound Emissions exceeding the acceptable ambient level in Air Guide-I. (Air Guide I does not establish standards but does give guidance on actionable levels.)
    3. Construction of sources in violation of Part 201 and/or 231 (new source review at major facilities in non-attainment areas).
    4. Construction of sources in violation of Part 201 and/or prevention of Significant Deterioration (PSD) regulations (new source review at major facilities in attainment areas).
  • Class II - Medium Priority

    From the date an inspection is made or a compliance testing report is received,

    1. Determine if a violation exists within 30 days,
    2. Notify facility of any violation and the need to remedy within 75 days, and
    3. Have facility in compliance, under order, referred to Attorney General, a district attorney, or EPA, or scheduled for hearing or SIP revision within 150 days.
  • Emissions of non-attainment contaminants from major (Class Al or A2) facilities in non-attainment areas, such as facilities subject to Parts 228, 229, 231 or 234 in the New York Metropolitan area.
  • Emissions from sources subject to delegated PSD or NSPs regulations, such as new asphalt plants.
  • Emissions of non-attainment contaminants from non-major (Class b) facilities in non-attainment areas, such as gasoline stations in the New York City Metro area.
  • Violations for attainment contaminants for major (Class Al or a2) facilities.
  • Violations for attainment contaminants from non-major (Class B) facilities.
  • Class III - Routine Priority(5)

    Resolve violation no later than 150 days after inspection if technical and legal resources are available.(6)

    1. Violations involving fugitive dust or odor cases.(7)
    2. Violations of Part 215 (open burning).
    3. Violations of Part 217 (gasoline engines).
    4. Violations of Part 218 (diesels).
    5. Violations of Vehicle and Traffic Law Sections dealing with excessive smoke.

IV. Development and Execution of an Annual Enforcement Workplan

Broad statements of intent and objectives do not complete an Enforcement policy. Specific objectives shall be developed which reflect past program experiences, environmental concerns (i.e., air quality and public health priorities), agency resource constraints, and estimates of future non-compliance.

Each year, under the direction of the General Counsel, DEC will prepare an air enforcement workplan specifying the best estimates possible of projected enforcement undertakings for the coming State Fiscal year. The workplans should include projections of the volume of enforcement cases to be handled by the Division of Law Enforcement. The workplans will also be useful in identifying where Agency resources would be most effectively applied.

The enforcement workplan constitutes a State commitment to meet the specified objectives. As such, the Commissioner will hold responsible the units and individuals accountable for the performance of the stated objectives.

Information from the Department's Environmental Enforcement Data System will be used as an additional tool to evaluate Regional office and program responsiveness. Environmental quality and public health protection are the real measures of this Department's public service; however, surrogate indicators of the increments toward clean air are substitute measures of the effectiveness of this agency.

In developing the yearly enforcement workplan, DEC shall apply the priority factors listed in Objective 3. While the Office of General Counsel is responsible for development of the final workplan, it is the obligation of the Division of Air Resources to provide projections of the volume of enforcement cases. It is the obligation of the Office of General Counsel to ensure that appropriate enforcement response is made in all cases referred for enforcement.

V. Organization/Procedures

The listing below is not intended to be all-inclusive of the many employees and officers of this Department critical to the execution of a competent and cohesive air enforcement program. This listing is a bare conceptual outline of the integrated program responsibilities necessary to conduct the air enforcement effort. It is intended to provide guidance on the division of responsibilities at several critical points of connection in the air enforcement program.

  1. Director, Division of Air Resources (DAR)

    The Director of DAR is the air program chief, who is directly accountable for both permit substance and compliance activity. the Director of DAR is responsible for developing general and case-specific pre-enforcement compliance strategies, conducting program communications with EPA, and communicating Departmental Compliance strategies to Regional units. Additionally, through the Director of the Bureau of Source Control, the Director of DAR has oversight responsibility to see that facility violations are Analyzed and that concerns are addressed in accord with Departmental policy. This includes coordinating with EPA by holding regular Fair Enforcement Coordinating Conferences".

  2. Regional Director

    The Regional Director has the responsibility to see that regional personnel carry out Department policy and is the direct Supervisor of the Regional Engineer, to whom the Regional Air pollution Control Engineer reports (except in Regions 2 and 9). The Regional Director must balance daily work demands and exercise judgment to allocate resources to most effectively carry out the requirements of Competing environmental enforcement policies. The Regional Director, through docketing or other means, must make case-specific decisions as to the timing and manner of Regional actions to carry out Departmental enforcement policy. The Regional Director acts for the Commissioner in executing Orders on Consent, according to Organization and Delegation Memorandum #84-32 (also issued as Enforcement Policy Series Number 1).

  3. Regional Air Pollution Control Engineer ("RAPCE")

    The RAPCE reports through the chain of command to the Regional Director. The RAPCE is responsible for carrying out the operating guidance of the DAR and for implementing DAR compliance programs. The RAPCE has the responsibility to advise the DAR of factors which impair or are likely to impair full and professional execution of the air enforcement workplan. The RAPCE identifies violations, implements pre-enforcement compliance strategies, and consults with the Regional Attorney regarding enforcement strategies.

  4. Regional Attorney

    The Regional Attorney is responsible for handling through the administrative enforcement process violations of the ECL. Typically, the Regional Attorney is also the Department's lead contact for cases referred to other agencies for judicial Enforcement. He/she is to render independent judgment on the merits of each case. The independent review must be preceded by a consultation with program staff. The Regional Attorney has the obligation and authority to request program staff to provide information and consultation on any violation or suspected violation of the ECL. Upon referral of a matter to the Regional Attorney by the program, the Regional Attorney becomes the enforcement case manager. All litigation, matters involving permit actions, and all communication involving the case must then be handled by or in consultation with the Regional Attorney.

  5. Chief Environmental Conservation Officer and Investigator

    The Chief Environmental Conservation Officer (CECO) is responsible for ensuring that uniformed Environmental Conservation officers (ECOs) carry out the Department's Law Enforcement objectives and the Department's policies and procedures in relation to air quality enforcement. The CECO will provide support to the Regional Air workplan through the appropriate deployment of and direction the Regional Law Enforcement staff. When appropriate the CECO will participate in docketing sessions or regional forums to coordinate Law Enforcement's participation and review compliance strategy development. The Bureau of Environmental Conservation Investigation's (BECI) Captains are responsible for providing support to the Regional Air workplan by directing lengthy and/or complex investigations whenever appropriate. The uniformed CECO and/or BECI captain will be informed of all criminal prosecutions planned or contemplated and will be responsible for management of all criminal investigations.

  6. Director, Division of Law Enforcement ("DLE")

    The Director of DLE is the Department's chief police officer and is responsible for providing statewide direction to the DLE in the conduct of civil and criminal investigations and enforcement of air quality offenses. The Director of DLE will participate in the formulation of the Air enforcement workplan and provide guidance in areas requiring the use of DLE staff in the enforcement of the air pollution control laws.

  7. Director, Division-of Environmental Enforcement ("DEE")

    The Director of DEE represents the General Counsel in matters of Enforcement, and provides guidance and direction to RegionaL Attorneys in the conduct of air enforcement cases. The Director of DEE has an overall and statewide enforcement perspective, and as such, it is the duty of the Director of DEE to coordinate the enforcement activities of the Regional Attorneys to ensure adequate quality and uniformity in the provision of legal services to the air enforcement program. In addition, the Director of DEE, through the Compliance Counsel, has the responsibility to approve all Referrals for enforcement to the Attorney General and EPA and to provide legal guidance to the DAR in the development of its directives.

New York State Department of Environmental Conservation

Henry G. Williams
Commissioner

Dated: December 20, 1985

Albany, New York

1. Communication of DEC's actions will Continue to flow through many channels, such as direct Communications with professional air pollution controL Associations, environmental and business groups, and through press releases coordinated by the Office of Public Affairs. The Division of Environmental Enforcement and the Regional Offices will provide the Office of Public Affairs with the information which summarizes air enforcement activity.

2. Environmental control actions are possible under many provisions of New York law. For example, public nuisance Actions may be undertaken by the Attorney General or localities. The Executive Law authorizes certain emergency actions by local officials. Also, private nuisance and civil suits are available to citizens aggrieved by pollution.

3. 6 NYCRR means Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York. Part references are to parts of 6 NYCRR.

4. The classification of sources into Al, A2, b. etc., is specified in the Air Enforcement Agreement between DEC and EPA. See esp. "National Air Audit Guidance".

5. On occasion, such cases become high priority enforcement matters. All such complaints should be appropriately investigated to determine if Class I or Class II priorities attend the alleged violation.

6. Some of the Class III priorities are readily addressable by Environmental Conservation Officers and forest Rangers through local criminal justice courts. Violations which can be addressed expediently by these officers are important and should receive routine attention so long as they do not detract from enforcement efforts in the Class I and II priorities.

7. If an alleged odor violation is determined by staff investigation to be relatively minor, consultation with central Office Air Resources and Environmental Enforcement Divisions must precede commencement of formal Enforcement action.

List of Appendices

  1. Timely and Appropriate Enforcement Response
  2. Gasoline Vapor Recovery Systems

    Appendix II.1 : Gasoline Vapor Recovery Systems Outside of the New York City Metropolitan Area
    - Issued 06 July 1988, Revised 15 August 1995
    Appendix II.2 : Gasoline Vapor Recovery Systems Outside of the New York City Metropolitan Area
    - Issued 06 July 1988, Revised 31 January 1996
    Appendix II.3 : Gasoline Vapor Recovery Systems Outside of the New York City Metropolitan Area
    - Issued 06 July 1988, Revised 29 July 1996

  3. Architectural Surface Coatings (No longer in force. Major rule changes commenced January 1, 2005)
  4. Permit to Construct and Certificate to Operate Violations

    November 1, 1994 Revision
    June 30, 1995 Revision

  5. Regulated Medical Waste Incineration
  6. Stationary Combustion Installations
  7. RACT at Major Facilities

    Amendment to Appendix VII

  8. New Vehicle Emission Standards
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