D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

DEE-23: Air Violation Penalty Policy for Short-Form Orders on Consent

New York State Department of Environmental Conservation

DEC Policy
Issuing Authority: James H. Ferreira, Deputy Commissioner and General Counsel
Date Issued: 14 March 2005
Latest Date Revised:

I. SUMMARY

This Program Policy provides a consistent approach to address air violations where the potential for harm and any actual harm to public health, the environment or the regulatory system is minor. The penalty ranges and guidance contained in this Policy will assist Department Staff in efficiently and fairly deterring future violations and assessing appropriate penalties. Additionally, this policy will provide the regulated community with greater certainty regarding penalties for minor violations.

II. POLICY

  1. Appropriate Cases

    This Policy applies only to cases involving violations described in Appendix I to this document. The following violations are not covered by this Policy:

    • "High Priority Violations," as the U.S. Environmental Protection Agency defines that term, that are not identified in Appendix I;
    • where the owner or operator repeatedly violates regulatory requirements;
    • where the owner or operator violates requirements not identified in Appendix I;
    • where the owner or operator fails to cooperate in good faith to eliminate the recurrence of the violation(s);
    • violation(s) that may:
      • cause serious short-term public health impacts, such as an emergency incident requiring medical treatment;
      • result in serious long-term public health impacts, such as circumstances where toxic emissions exceed the applicable ambient level in Program Policy DAR-1;
      • involve exceedance(s) of an applicable emission standard and cannot be remedied without installation of, or major modification to, pollution control equipment or process equipment;
      • concern a major substantive requirement of the New Source Review program, including the Clean Air Act (CAA) Part C - Prevention of Significant Deterioration (PSD) and CAA Part D - Non-Attainment area programs;
      • involve exceedance(s) of permitted emission limits by a synthetic minor source where the exceedance(s) would classify the source as a major source;
      • have been committed intentionally, knowingly, recklessly or with any of the culpable mental states defined in Penal Law §15.05;
      • warrant a penalty that exceeds the guidelines set forth in §IV.3 of this Policy; or
      • require a detailed or complex compliance schedule.
  2. Appropriate Penalties

    Consistent with the Civil Penalty Policy, a penalty is warranted when a violation occurs unless the respondent documents compelling circumstances to the contrary. Department Staff should use the penalty amounts in this Policy only when they will adequately address the violations and result in an effective level of deterrence against future non-compliance. The penalty matrix contained within Appendix I should not be used only to promote prompt settlement.

    Individual circumstances may warrant assessment of higher penalties, and this Policy does not preclude Department Staff from exercising their discretion to seek such penalties as appropriate provided the penalty guidelines for Short-Form Consent Orders are followed. In all circumstances, Department Staff should continue to consider any variable factors that may be unique to a facility and endeavor to impose the appropriate sanction for the particular offense in accordance with the Civil Penalty Policy. Examples of when the imposition of a civil penalty in excess of the Policy guidelines below is appropriate include instances where the violation(s) continued over an extended period, multiple violations are found by the Department, or when violations occur in non-attainment areas.

    Exceptional circumstances with significant mitigating factors may warrant a lower penalty than provided for (e.g., the source can make a credible demonstration of inability to pay and is otherwise in compliance with applicable regulations). In determining whether a deviation from the stated penalty range is appropriate, Department Staff should refer to the Civil Penalty Policy. Further, Department Staff may consider suspending a portion of the administrative penalties when deemed appropriate and after accounting for the following considerations:

    • timeliness in response to violation;
    • history of past violations;
    • cooperative efforts toward compliance;
    • severity of violation and relative risk to human health; and
    • other extenuating circumstances.

    Written documentation should be made in support of any suspended penalty determination and kept in the case file. The violator will not be required to pay the amount suspended if the violator complies with all provisions of the Consent Order.

    Any adjustment that exceeds the ranges suggested by this Policy (other than the total payable penalty amount not exceeding $10,000 and the total assessed amount not exceeding $20,000, which are not adjustable) must be approved by the Director of the Division of Environmental Enforcement.

  3. Penalty Considerations

    The following should be considered when determining an appropriate penalty:

    • Civil penalty guidelines for certain violations which may be resolved by means of a Short-Form Consent Order are listed in the table attached as Appendix I. This Appendix is limited to the gravity component of the penalty. Any significant economic benefit must be recovered in addition to the indicated amounts. If the gravity component combined with any significant economic benefit exceeds a payable penalty of $10,000, Department Staff must refer the matter to the Regional Attorney for appropriate enforcement.
    • If the facility owner or operator has violated more than one regulatory requirement, a separate civil penalty must be assessed for each violation. In addition to payment of appropriate penalties, Short-Form Consent Orders should provide that sources must pay any regulatory fees (plus any penalties and interest) owed to the Department (or avoided) because the facility did not have a proper permit. If regulatory fees are owed, Division of Air Resources Staff should coordinate with the Regulatory Fees Unit to ensure that the proper amount of regulatory fee is collected.
    • Environmental Benefit Projects may not be used to resolve minor violations or to mitigate the penalty paid by a respondent under a Short-Form Consent Order.

    Penalty calculations performed in anticipation of litigation are exempt from disclosure under the Freedom of Information Law. 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.

III. PURPOSE

This Policy applies to administrative settlements of DEC enforcement actions involving minor violations of Article 19 of the Environmental Conservation Law ("ECL") and the Clean Air Act, 42 U.S.C. 7401 et seq., as amended by Public Law 101-549, November 15, 1990, to the extent incorporated by reference into State law. ECL Article 71 and the State Administrative Procedure Act empower the Commissioner of Environmental Conservation to issue Orders on Consent ("Consent Orders"). Consistent with the Order on Consent Enforcement Policy, this Policy authorizes the use of Short-Form Consent Orders by Division of Air Resources and Office of General Counsel legal Staff for specified minor violations and provides guidance for their use.

As noted in the Civil Penalty Policy, the purpose of enforcement guidance is to assist Department Staff in efficiently and fairly deterring and addressing violations. The consistent implementation of this policy will provide the regulated community with greater certainty regarding the Department's enforcement response to minor air violations and ensure that those who comply with the law are not placed at a competitive disadvantage.

This document should be used in conjunction with the Civil Penalty Policy; Order on Consent Enforcement Policy; Record of Compliance Policy; and Small Business Self-Disclosure Policy. The policies and procedures set out in this document are intended solely for the use and guidance of Department Staff. They are not intended to create any substantive or procedural rights, enforceable by any party in administrative or judicial litigation with the State of New York. The Department of Environmental Conservation reserves the right to act at variance with these policies and procedures.

When used by Division of Air Resources Staff, this Policy may only be used for settlement purposes. It is not to be used in determining penalties at a hearing or trial. In accordance with the Civil Penalty Policy, however, penalties in "adjudicated cases must, on average and consistent with consideration of fairness, be significantly higher" than the amounts suggested below.

IV. BACKGROUND

Short-Form Consent Orders facilitate the efficient resolution of minor violations and encourage facility owners and operators to expeditiously come into compliance with applicable rules and regulations. Consistent with the Order on Consent Enforcement Policy, Short-Form Consent Orders are appropriate where:

  1. Remedial action is not required or has been satisfactorily completed in accordance with program directives or where only minor compliance activity lasting no more than six months duration is required after approval of the Program Supervisor and Regional Attorney;
  2. The Short-Form Order has been endorsed as to form by the Regional Attorney and as to content by the appropriate program supervisors; and
  3. The penalty amount assessed does not exceed $20,000, provided that 1) the payable portion of the penalty amount assessed does not exceed $10,000, and 2), if warranted and when all other elements of the policy are followed, the suspended penalty portion of the penalty amount assessed does not exceed $10,000.

V. RESPONSIBILITY

Regional Air Permit Control Engineers (RAPCEs) will typically be responsible for ensuring that a case has merit and that use of the Short-Form Consent Order by his or her staff is appropriate. Because Short-Form Consent Orders are designed to provide facility owners and operators a relatively straightforward means of coming into compliance, such matters must be resolved expeditiously. Accordingly, the offer to settle violations by Short-Form Consent Order in accordance with this guidance must be limited to a period not to exceed 30 days. All cases that are not promptly resolved must be referred to the Regional Attorney for appropriate enforcement.

VI. PROCEDURE

  1. Notice of Violation

    Within 30 days of discovering a violation which may be resolved via a Short-Form Consent Order, staff should issue a written Notice of Violation ("NOV") via certified mail, return receipt requested. The NOV should comport with the Air Facility System (AFS) model and should succinctly state the specific regulatory, statutory and/or permit provision respondent violated and the dates the violations occurred; factual, legal and policy considerations should not be included. Department Staff should attach any supporting documentation of the violation as appropriate. A model Notice of Violation with Short-Form Consent Order can be found on the Department's internal website at: http://internal/home/rgenf/donepages/forms/nov_sfco.html

  2. Short-Form Consent Order

    The model Short-Form Consent Order to be used for matters addressed under this Policy is found on the Department's internal website at: http://internal/home/rgenf/donepages/forms/sfco.html

    The Short-Form Consent Order should be drafted in a manner that thoroughly states the specific regulatory, statutory and/or permit provision(s) the respondent violated, the dates the violation(s) occurred, how the Department determined the existence of the violation(s), and, if appropriate, the amount of any regulatory fees, and any penalty and interest thereon, owed. Staff should not deviate from the language of the model or accept any signed Consent Order to which a respondent has made changes without the review and approval of the Director of the Division of Environmental Enforcement. The Regional Enforcement Coordinator or Legal Secretary should be contacted to obtain a case number.

  3. Department Review and Execution

    In addition to any other regional or program procedures, all regional Short-Form Consent Orders negotiated by regional Air Resources Staff must be approved by the Regional Attorney as to form before their submission to the Regional Director for execution. After issuance of the Order, the respondent(s) must be served with a fully executed copy of the Consent Order via a mechanism that guarantees proof of service, such as certified mail, return receipt requested.

    Information pertaining to all executed Consent Orders must be entered into AFS (or into any electronic database replacing same) and forwarded to the Division of Environmental Enforcement, which will enter the requisite information pertaining to them into VISTA.

Related References

Order on Consent Enforcement Policy (revised 08/28/1990)
Air Pollution Control Enforcement Policy (issued 12/20/1985)
Civil Penalty Policy (issued 06/20/1990)

APPENDIX I

ASSESSED PENALTY GUIDELINES FOR MINOR VIOLATIONS - GRAVITY COMPONENT
Violation Penalty
Part 201, Failure to Make a Timely Application for a State Facility Permit or Registration:

Where a source, other than a "major stationary source" as defined in 6 NYCRR 201-2.1, fails to make a timely application for a State Facility permit under 6 NYCRR 201-5 or fails to register with the Department pursuant to 6 NYCRR 201-4. This includes the failure to make a timely application for permit renewals and modifications.

Note: Failure to make either a timely application for a Clean Air Act Title V Major Stationary Source Permit under 6 NYCRR 201-6 or to apply for a federally enforceable emission cap by the Title V Permit application deadline cannot be addressed under this Policy and must be referred to the Regional Attorney for appropriate enforcement as violations of this nature warrant penalties exceeding $10,000.
Permit Applications:

$3,000 - $7,000: 30 to 180 days late
$5,000 - $10,000: 180 to 360 days late

Note: if over 360 days late, refer to the Regional Attorney for appropriate enforcement.

Registrations:

$500 - $3,000: 60 to 180 days late
$1,000 - $5,000: 180 to 360 days late

Note: if over 360 days late, refer to the Regional Attorney for appropriate enforcement.
Violations of Specified Reporting and Record Keeping Requirements:

Any failure:
  • to submit an annual, semi-annual, quarterly or monthly compliance certification report in violation of 6 NYCRR 201-6.5(e);or a quarterly report in violation of 6 NYCRR 236.5(e); or information required under 6 NYCRR 227-2.6(b)(4)(iv).
  • to submit an emission statement in violation of 6 NYCRR 202-2.1(a); or a stack test report in violation of 6 NYCRR 219-3.9(d).
  • to retain for up to 3 years and submit to the commissioner fuel analyses, information on the quantity of fuel received, burned or sold, and the results of stack sampling, stack monitoring and other procedures in violation of 6 NYCRR 225-1.8.
  • of an owner or operator required to operate a Continuous Opacity Monitoring System (COMS) to submit an accurate quarterly excess emissions and monitoring system performance report to the Department in violation of 6 NYCRR 227-1.4(b).
  • to satisfy the reporting and record keeping requirements of 6 NYCRR 228.5(a) or 40 CFR 63.10.
  • to maintain records in violation of 6 NYCRR 233.5(a).
  • to notify the EPA Administrator of construction or startup dates of an affected facility in violation of 40 CFR 60.7(a)(1) or (a)(3).
Submissions:

In all circumstances, delinquent reports must be promptly submitted and penalties for any reported exceedance(s) must be assessed as appropriate. Failure to promptly submit reports shall result in added penalties.

Penalties:

Major stationary sources:

$500 - $3,000: less than 60 days late
$2,000 - $10,000: 60 to 180 days late

Note: if over 180 days late, refer to the Regional Attorney for appropriate enforcement.

Non-major stationary sources:

$375 - $1,000: less than 60 days late
$750 - $3,000: 60 to 180 days late
$1,500 - $10,000: more than 180 days late
Violations of the following Performance Testing and Monitoring Requirements:
Any failure:
  • to conduct an initial performance test in violation of 40 CFR 60.8(a) or to perform an emission test in violation of 6 NYCRR 219-2.6(b) or to satisfy the performance testing requirements set forth in 40 CFR 63.7;
  • to comply with a requirement in a New York State permit relating to particulate testing for portland cement plants pursuant to 6 NYCRR 220.2 or 6 NYCRR 220.3;
  • to satisfy the particulate emission standards set forth in 227-1.2;
  • to satisfy a requirement in a New York State permit relating to 6 NYCRR 227-2.4, 6 NYCRR 229.3(d)(1), or 6 NYCRR 234.3(a);
  • to monitor emissions in violation of 6 NYCRR 233.3(a)(1) or to comply with monitoring requirements described in 6 NYCRR 234.4(c) or to satisfy the monitoring requirements set forth in 40 CFR 63.8;
  • to satisfy the notification requirements set forth in 40 CFR 63.9.
Submissions:

In all circumstances, delinquent reports must be promptly submitted and penalties for any reported exceedance(s) must be assessed as appropriate. Failure to promptly submit reports shall result in added penalties.

Penalties:

Major stationary sources:

$500 - $3,000: less than 60 days late
$2,000 - $10,000: 60 to 180 days late

Note: if over 180 days late, refer to the Regional Attorney for appropriate enforcement.

Non-major stationary sources:

$375 - $1,000: less than 60 days late
$750 - $3,000: 60 to 180 days late
$1,500 - $10,000: more than 180 days late
Subpart 227-1.3, Opacity:

Excess opacity periods which must be reported pursuant to 6 NYCRR 227-1.4(c). Each six minute period is a separate violation.

Cases with up to 25 six-minute exceedances of the opacity standard in consecutive calendar quarters may be eligible for treatment under this policy.
Emission Points with Operating Continuous Opacity Monitors:

Each six minute period:

$375 if opacity <= 40%
$750 if opacity > 40%

Note: Refer all instances of non-operational COMs to the Regional Attorney for appropriate enforcement.
Part 228, Surface Coating and Part 234, Graphic Arts:

Violations involving VOC emission or coating limits by a non-major source provided the extent of noncompliance is minor. Program Staff should review purchase and use orders to confirm that the noncomplying paint or surface coating was used for a limited period of time and that significant amounts of such paint or coating were not used.
Facilities in Severe Non-Attainment Areas:

$1,000 - $5,000: facilities emitting less than 5 tons per year of VOCs (actual)
$3,000 - $7,500: facilities emitting 5 to 12.5 tons per year of VOCs (actual)
$5,000 - $10,000: facilities emitting more than 12.5 tons per year but less than 25 tons per year of VOCs (actual)

Facilities in Other Areas:

$500 - $10,000: facilities emitting less than 50 tons per year of VOCs (actual)
Section 200.7, Maintenance of Emission Control Equipment:

Any corrective action must not involve extensive repairs of equipment and all work must be completed within a short time frame. A referral to legal and a significantly higher penalty is appropriate where the violation contributed to the exceedance(s) of an applicable emission limit.
Major stationary sources:

$5,000 - $10,000

Non-major stationary sources:

$500 - $5,000
Part 218, New Vehicle Emissions Standards:

Dealers selling or leasing noncomplying vehicles and improper record keeping. Such cases will typically be handled by the Bureau of Mobile Sources working in conjunction with Central Office Legal Staff.
First Sale, Lease, Registration or Access Offense: $500 - $1,000

Subsequent Sale, Lease, Registration or Access Offense: $1,000 - $3,000

Record Keeping Offense: $375 - $750

Note: Manufacturers should pay at least $5,000 per vehicle for delivery for sale or for sale in New York and $1,000 to $2,000 for record keeping offenses.
Part 230, Gasoline Dispensing Sites and Transport Vehicles:

Vapor Collection System violations

Failure to replace or modify any worn or ineffective component to ensure vapor tight integrity and efficacy of Stage I or Stage II vapor control systems. Stage II systems must use equipment in "DEC Approved Equipment List: Stage II Vapor Recovery."

Note: this policy does not cover violations for failure to have constructed a submerged filling system, a Stage I vapor recovery system, or a Stage II vapor recovery system, nor does it cover violations for failure to retrofit Stage II vapor recovery systems. Refer such violations to the Regional Attorney for appropriate enforcement.
The following minimum amounts apply:

$375 for any of the following violations:
  • Face Plate missing, torn more than 25%, or separated more than 25%;
  • Bellows slit(s) or tear(s) totaling 1" or more in length, or having a hole(s) totaling ½" or more in diameter, or improperly installed, or not securely attached;
  • Latch Ring missing;
  • Retractor Assembly hose not returning;
  • Check Valve improperly installed;
  • Vapor Return Line improperly installed;
  • Instructions/800 Number not posted or incorrect number.

$500 for any of the following violations:
  • Coax Drop Tube installed improperly or damaged;
  • Retractor Assembly broken;
  • Check Valve missing or not functioning properly;
  • Product Fill Cap or Vapor Cap not making vapor tight seal due to gasket missing and/or cap broken;
  • Stage II Test: failure to retain stage II system test results at the gasoline dispensing site for 5 years following the test;
  • Stage II Test: failure to submit a notarized stage II system test report to the Department within 30 days of the test.

$1,000 for any of the following violations:
  • Hose: any damage to a hose that prevents the hose or stage II vapor recovery system from functioning properly, including, but not limited to the following:
    • slit(s) or tear(s) totaling 1" or more in length,
    • hole(s) totaling ½" or more in diameter,
    • hose weather checked so as to allow vapor loss,
    • hose improper length,
    • hose crushed or kinked, or
    • hose repaired using unapproved method (e.g. tape or glue);
  • Product Fill Cap or Vapor Cap missing or not installed;
  • Stage I Valve (poppet/dry break) not making vapor tight seal.

$1,500 for the following violation:
  • Stage II Test: failure to perform a required stage II system test.

$2,000 for first, $5,000 for second violation(s) of any of the following:
  • Stage I Valve (poppet/dry break) missing or defeated;
  • Stage II System defeated.

Other minimum amounts:

No Registration (when facility is not subject to 6 NYCRR Part 612): $500/year;

Failure to connect and/or ensure a vapor tight connection of Stage I during fuel delivery to a gasoline dispensing site (gasoline dispensing site: $1,000/failure; gasoline transport vehicle: $5,000/failure);

Failure to pressure-vacuum test gasoline transport vehicle annually and/or failure to keep a copy of the most recent pressure-vacuum test results with the gasoline transport vehicle: $1,000/truck;

Excessive vapor leakage during truck loading/unloading of fuel: $1,000/truck.

FINES DOUBLE FOR ANY REPEAT VIOLATIONS UNDER 6 NYCRR PART 230 WITHIN 24 MONTHS.
Part 230, Gasoline Dispensing Sites and Transport Vehicles:

Transport Vehicle violations
Failure to connect Stage I during delivery to gasoline dispensing site: $5,000/failure.

Failure to pressure / vacuum test transport vehicle annually: $1,000/truck.

Excessive vapor leakage during truck loading: $1,000/truck.

FINES DOUBLE FOR ANY REPEAT VIOLATIONS UNDER 6 NYCRR PART 230 WITHIN 24 MONTHS.
Part 232, Perchloroethylene Dry Cleaning Facilities

Please refer to DAR - 9 / Dry Cleaner Enforcement Guidance, issued 21 May 2004.
DAR - 9 / Dry Cleaner Enforcement Guidance establishes the Department's policy relating to enforcement of 6 NYCRR Part 232, Perchloroethylene Dry Cleaners. It sets forth and classifies the various types of violations that typically occur at dry cleaning facilities subject to Part 232. It also provides procedures for using enforcement discretion, issuance of Notices of Violation, calculation of penalties, issuance of Short Form Consent Orders by the Division of Air Resources, and referral to the Division of Environmental Enforcement for some classes of violations.
Subpart 217-3, Idling Diesels First incident: $500 - $1,000 per vehicle
Second incident: $1,000 - $5,000 per vehicle
Subsequent incidents: refer to the Regional Attorney for appropriate enforcement.
  • PDF Help
  • For help with PDFs on this page, please call 518-402-9509.
  • Contact for this Page
  • Office of General Counsel
    625 Broadway, 14th Floor
    Albany, NY 12233-5500
    518-402-9509
    Send us an email
  • This Page Covers
  • Page applies to all NYS regions