Printer-friendlyAir Resources Compliance and Enforcement Summary - FFY 2005
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Introduction
This report provides an overview of the Division of Air Resources enforcement activities and compliance monitoring accomplishments during Federal Fiscal Year 2005 (FFY 2005). The FFY 2005 covers the period from October 1, 2004 through September 30, 2005. The purpose of compliance monitoring and enforcement is to maintain an adequate regulatory presence so as to provide a deterrence against non-compliance. Elements of a good compliance monitoring and enforcement program include; on-site inspections, review of periodic monitoring reports and performance tests, compliance evaluations and tracking of compliance related activities. When violations are detected, an enforcement response is appropriate and may involve the assessment of penalties. The goal is to achieve compliance with all legal and regulatory requirements.
New York's enforcement program is based in the nine regional offices with support and guidance provided by the Central Office. Federal policy requires states to maintain lists of sources subject to federal Clean Air Act requirements as well as dates and results of certain compliance activities including all High Priority Violations as defined by EPA policy. New York uses its Air Facility System (AFS) for tracking the compliance of air pollution sources, and for developing permits which provide facilities authority to operate.
A facility's compliance with permit requirements and air regulations is tracked in AFS, including; inspections, full compliance evaluations, compliance certifications, stack tests, as well as any notices of violations and subsequent enforcement cases. Compliance and enforcement activities are tracked nationally in the EPA-Aerometric Information Retrieval System (AIRS) database. Data required to be reported to the EPA-AIRS system are periodically downloaded from the New York AFS system into batch files which are uploaded to AIRS.
Full Compliance Evaluations
EPA's Compliance Monitoring Strategy (CMS) of April 2001 set minimum standards for state air enforcement programs. The CMS policy requires state agencies to submit a CMS Plan once every two years. Each state must conduct a comprehensive evaluation of the compliance status for each facility targeted on its CMS plan. This "full compliance evaluation" (FCE) must include: a review of all required reports, monitoring data (continuous emission monitors, excess emission reports, others), Title V annual compliance certifications, appropriate inspections and any other reports required by the permit. Emphasis has been placed on Title V major sources and a limited subset of the largest synthetic minor sources, called SM-80s. SM-80s are facilities with permissible emissions from 80 to 99% of the major source thresholds.
Inspections
On site inspections are one of the main tools used in maintaining the Department's oversight of facilities compliance with air pollution control regulations. Inspections are also an important component of a full compliance evaluation. During FFY 2005, Department staff conducted 1300 inspections at over 1200 air pollution sources. Particular focus was given to inspecting major sources (facilities with actual or permitted emissions greater than Title V thresholds.)
EPA High Priority Violations
An integral part of New York's air pollution control program is the appropriate enforcement of state and federal regulations. Under the EPA-High Priority Violation (HPV) policy, the focus is on the most important and environmentally significant violations at major "Title V" sources of air pollution. The policy contains threshold criteria to determine whether or not a violation is an HPV and sets guidance for addressing cases in a timely and appropriate manner. High priority violations should be addressed within 270 days; however the more complicated cases often take longer than 270 days to resolve.
Penalties provide incentive to stay in compliance and take away any economic benefit that a firm may have enjoyed by not complying with state and federal regulations. There were 97 active cases in FFY 2005. Of these active cases, 66 are holdovers from prior fiscal years and 31 are new cases initiated between October 1, 2004 and September 30, 2005. Fourteen new cases have already been closed with consent orders.
One comparison of interest is the number of major sources in the state vs. the number of HPV cases initiated during FFY 2005. As of February 6, 2006, there were 473 facilities on the major source list in AFS and there were 31 new HPV cases (6.5%). Some of these violations were discovered as a result of inspections. Many violations were discovered through alternative methods (i.e., annual Title V compliance certifications, quarterly excess emission reports, and stack tests.)
Enforcement Summary of Consent Orders (FFY 2005)
During FFY 2005, the Department collected over $2.3 million in payable penalties for air related cases through 235 orders on consent. The majority of the penalty dollars were paid by major sources cited for HPVs. A total of $1.78 million in payable penalties were assessed through 41 Consent Orders from HPV cases. The other 194 orders on consent were issued to facilities for a total of $569,859 in penalties. These non-HPV cases were generally at non-major sources and were for violations of regulations such as; open burning under Part 215, dry cleaner requirements in Part 232, and failure to obtain registrations or permits. Numerous small facilities signed consent orders for permitting violations.
Stack Test Program
One of the most effective ways of determining a facility's compliance with emission limits as well as actual source emissions is to conduct a stack test. There were more than 101 stack tests conducted in FFY 2005. Of the 101 stack tests recorded in AFS, five had violations.
Investigations
Investigations are a more resource intensive and in-depth assessment of a particular issue. They are usually initiated based on information discovered during an inspection or as the result of a targeted industry, regulatory or statutory initiative. Examples of investigations are the current in-depth PSD/NSR and NSPS reviews being conducted by the Department in the coal-fired utility industries. These have been ongoing since 1999 and have consumed many hundreds of hours of staff resources. Twelve of these investigations continued into FFY 2005. Nine conducted by New York State and three by EPA Region 2. As of October 1, 2005 seven of these investigations have been settled by Orders on Consent or Consent Decrees, depending on the legal venue. Those seven facilities include one Mirant facility, four AES facilities, and two NRG facilities. One additional investigation initiated in FFY 2004 focused on the cement industry sector is still ongoing.
Summary (FFY 2005)
- Identified 31 new HPV cases as a result of compliance monitoring activities.
- Inspected over 350 major facilities.
- Addressed 56 active high priority violations.
- Collected over $2.3 million in payable penalties for Air related cases.
- Issued 41 orders on consent for High Priority Violations and 194 orders for non-HPV cases.
- Tracked full compliance evaluations, High Priority Violations and corrective actions in the EPA-AIRS tracking system.
- Continued to pursue two PSD investigations of the coal-fired utility industry and one investigation of the cement industry sector.
- Conducted more than 101 stack tests.
- Received and reviewed more than 460 Title V annual compliance certifications.
- Received and reviewed over 2100 periodic monitoring reports.
- Conducted over 500 Full Compliance Evaluations (FCEs).
- Continued to provide all minimum data elements to the EPA-AIRS system as required by the EPA CMS Policy.
EPA High Priority Violations - An Overview
An integral part of New York's air pollution control program is appropriate enforcement of state and federal regulations at the major sources of air pollution. Working under the EPA's HPV policy, the focus is on the most important and environmentally significant violations. The policy contains threshold criteria to determine whether or not a violation meets HPV status. It also sets guidance for addressing cases in a timely and appropriate manner. High priority violations should be addressed within 270 days, however some more involved cases take longer to resolve. Often these more difficult cases involve complicated environmental laws, in-depth investigation, and extensive negotiations. Efforts to pursue these cases are frequently offset by significant reductions in pollutants from facilities that take measures to come into compliance. This also helps maintain a level playing field between those facilities that have gone to the expense to comply with air pollution laws and those that have disregarded air regulations.
| DEC Region | Old HPVs/SVs Carried over from prior FFY |
New HPVs Initiated during FFY 2004 |
Total HPVs/SVs Active during FFY 2004 |
Total HPVs/SVs Resolved during FFY 2004 |
|---|---|---|---|---|
| Region 1 | 2 | 1 | 3 | 0 |
| Region 2 | 27 | 19 | 46 | 17 |
| Region 3 | 8 | 0 | 8 | 3 |
| Region 4 | 3 | 0 | 3 | 3 |
| Region 5 | 1 | 1 | 2 | 0 |
| Region 6 | 3 | 3 | 6 | 5 |
| Region 7 | 9 | 2 | 11 | 5 |
| Region 8 | 7 | 4 | 11 | 2 |
| Region 9 | 9 | 2 | 11 | 6 |
| Totals | 66 | 31 | 97 | 41 |
Penalties provide incentive to stay in compliance and intended to remove economic benefit that a firm may have obtained while in non-compliance. The Department collected a total of $1.78 million in payable penalties through 41 consent orders for HPV's during FFY 2005.
The Department's objective is to address all HPV cases in a timely manner. Resolution of HPV cases often requires a significant amount of both the Division of Air Resources professional staff time as well as legal resources. There is an existing backlog of cases that have gone beyond the EPA time frames, that backlog was reduced during this report period. During FFY 2005, a total of 25 more cases were addressed than new cases initiated.
The Department tracks enforcement cases in the AFS Compliance Module. Both HPV and non-HPV cases can be tracked using this state database. As part of the delegation agreements with the federal government, states are required to provide HPV data for the EPA-AIRS data system. HPV cases from AFS are batch loaded to the EPA-AIRS system periodically, satisfying this portion of the federal reporting requirements.
The above table shows High Priority Violation case flow during FFY 2005. 97 HPV cases were actively worked on this fiscal year.
Holdover Cases - Of the 97 cases, 66 are holdovers from prior fiscal years. Of these holdover cases, 42 are now addressed. Meaning they were either resolved with consent order (27 cases), or they are being taken to hearing (15 cases). At the close of the fiscal year 24 holdover cases were still open and are overdue under the federal Timely and Appropriate HPV policy.
New HPV Cases - Of the 31 new HPV cases initiated between October 1, 2003 and September 30, 2004, 14 were closed with consent orders. Seventeen of the new cases are not yet resolved. Sixteen of these 17 new and unresolved cases are still within the 270 days allowed for addressing a case under the EPA Timely and Appropriate policy.
Over 350 of the 473 major facilities in AFS were inspected during FFY 2005. Many violations were discovered as a result of these inspections. However, most violations were discovered through compliance monitoring reports and annual certifications.
AFS Facility Inspections
On site inspections are one of the main tools used in maintaining the Department's oversight of facilities compliance with air pollution control regulations. During FFY 2005, AFS reports 1264 air pollution sources were inspected by the Department. Particular focus is given to inspecting major sources (facilities with actual or permitted emissions above Title V thresholds). In addition, over six-hundred smaller sources were inspected including synthetic minor facilities with emission caps and many downstate dry cleaning facilities.
State inspections are entered into the AFS system by the Regional inspectors. These inspection reports include details regarding; compliance status by regulation or permit condition cited in the facility permit, operating status and any specific observations made by the Regional inspector. This presence in the field helps ensure compliance with state and federal air pollution regulations. Violations discovered through these inspections are followed up with enforcement actions.
| DEC Region | Total | A | SM-80 | SM | B | UNK |
|---|---|---|---|---|---|---|
| Region 1 | 177 | 45 | 8 | 5 | 63 | 56 |
| Region 2 | 538 | 75 | 38 | 90 | 155 | 180 |
| Region 3 | 206 | 49 | 17 | 7 | 89 | 44 |
| Region 4 | 45 | 20 | 12 | 4 | 3 | 6 |
| Region 5 | 42 | 21 | 14 | 1 | 3 | 3 |
| Region 6 | 49 | 19 | 11 | 8 | 9 | 2 |
| Region 7 | 63 | 31 | 13 | 6 | 8 | 5 |
| Region 8 | 68 | 49 | 13 | 2 | 3 | 1 |
| Region 9 | 76 | 51 | 15 | 4 | 3 | 3 |
| Total | 1264 | 360 | 141 | 127 | 336 | 300 |
* Abbreviations for table header:
- A
- Major - Actual or potential emissions are above the applicable major source threshold
- SM-80
- Synthetic Minor - Emissions capped at between 80% and 99% of major source thresholds provided that the facility complies with federally enforceable regulations or permit limitations
- SM
- Synthetic Minor - For the purposes of this report, facilities with emissions below major source thresholds provided the facility complies with federally enforceable regulations or permit limitations and excluding the SM-80 facilities
- B
- Natural Minor - Potential emissions below all applicable major source thresholds
- UNK
- Facility not classified or Classification not determined
New York considers inspections to be an important tool. In order to focus limited resources where they can do the most good for the environment, major sources of air pollution are targeted for inspection under the CMS policy, at least once every two years. The vast majority of air pollution sources are non-major sources. The table below illustrates the regional distribution of inspections at major sources, as compared to the number of non-major sources inspected during this FFY.
EPA Compliance Monitoring Strategy
EPA's Compliance Monitoring Strategy (CMS) intends to provide a national consistency for stationary source compliance monitoring while allowing states flexibility in addressing air pollution program compliance. States submit a CMS plan to EPA biennially for discussion and approval. EPA periodically evaluates each States compliance monitoring program. The CMS policy focuses on federally enforceable requirements at Title V and SM-80 sources through three categories of compliance monitoring: Full Compliance Evaluation, Partial Compliance Evaluation, and Investigations.
Sources are tracked as "mega," "major," and "80% synthetic minor" ("SM-80") for CMS purposes. A "mega" site is one that is so large in the number and complexity of emission sources that a full evaluation of the facility's compliance status can not be reasonably done every two years. Mega sources can be put on a three year schedule for completion of a full compliance evaluation. New York has one facility currently categorized as a mega site. "Major" sources are those facilities with emissions permitted at or above Title V thresholds. An "SM-80" is a facility that is capped out of Title V with a permit that allows emissions of 80% to 99% of Title V thresholds. Such a source should be evaluated at least once every five years. Major sources should have a full compliance evaluation at least once every two years according to the EPA policy.
The CMS policy recognizes that there is a variety of methods available to agencies to determine the compliance of a source. It requires agencies to review varying sources of information in order to conduct a comprehensive evaluation of a facility's compliance status. Inspections are only a part of the evaluation process. A "Full Compliance Evaluation" (FCE) must include: a review of all required reports, monitoring data, stack tests, inspections and any other reporting requirements in a facility's permit.
The Department's CMS Plan was submitted to EPA in September 2003 for the 2004 and 2005 Federal Fiscal Years. That plan exceeded the minimum frequencies in the CMS policy that the state conduct an FCE at every major source every two years. Approximately 180 major NYS sources are scheduled to have an FCE both years while the remaining 293 majors will have an FCE conducted once every two years. The Department has determined that an FCE should be conducted every year at certain facilities where the compliance history or operations warrant annual review. AFS data shows that in Federal Fiscal Year 2005 New York conducted 479 FCEs, of which 339 were conducted for Title V major sources and 140 for SM-80 sources.
The current CMS Plan also committed the Department to conduct an FCE at one fifth of the SM-80 facilities each year. At the end of FFY 2006 the Department will have met it's five year goal of achieving an FCE at each of the 570 SM-80 sources in the state.
The chart below illustrates that the Department completed more FCEs at Major sources during FFY 2005 than were on the CMS plan.
Facility Compliance Tracking in AFS
The Department uses the AFS computer system to issue permits and track facilities with sources of air pollution. One of the tracking functions in AFS is the facility classification list. The list includes all operating major sources. In addition, the list has all synthetic minor and natural minor sources that have permits or registrations issued from AFS. The classification list is routinely maintained by both central office and regional staff. It comprises the most accurate list of facilities by class that are subject to permitting in the state. This table shows the breakdown of facilities based on AFS data from February 6, 2006.
| DEC Region | Total | A | SM-80 | SM | B |
|---|---|---|---|---|---|
| Region 1 | 1,458 | 64 | 35 | 370 | 989 |
| Region 2 | 5,343 | 115 | 155 | 2,113 | 2,960 |
| Region 3 | 979 | 54 | 60 | 172 | 693 |
| Region 4 | 347 | 39 | 57 | 163 | 88 |
| Region 5 | 270 | 21 | 48 | 113 | 88 |
| Region 6 | 280 | 27 | 44 | 112 | 97 |
| Region 7 | 482 | 39 | 52 | 170 | 221 |
| Region 8 | 484 | 50 | 64 | 157 | 213 |
| Region 9 | 682 | 64 | 55 | 148 | 415 |
| Total | 10,325 | 473 | 570 | 3,518 | 5,764 |
* Abbreviations for table header:
- A
- Major - Actual or potential emissions are above the applicable major source thresholds
- SM-80
- Synthetic Minor - Emissions capped at between 80% and 99% of major source thresholds provided that the facility complies with federally enforceable regulations or permit limitations
- SM
- Synthetic Minor - For the purposes of this report, facilities with emissions below major source thresholds provided the facility complies with federally enforceable regulations or permit limitations and excluding the SM-80 facilities
- B
- Natural Minor - Potential emissions below all applicable major source thresholds
The number of major sources continues to drop. There were 487 major sources last year. As of February 6, 2006 there are 473 facilities listed as active major sources. Some facilities have closed and some have chosen to limit emissions below Title V thresholds and thereby avoid Title V.
Stack Test Program
One of the most effective ways of determining actual emissions from a source and its ability to comply with emissions limits is to conduct a stack test. To help ensure that testing is done in accordance with approved protocols, Department staff spend many days afield witnessing stack tests. Under the current EPA Compliance Monitoring Strategy, stack testing has been given a higher priority, especially for major sources where there is no other reliable method of determining compliance. Many Title V permits now include the requirement that a source conduct a stack test at least once during the term of the permit (five years). Some violations have been detected as the result of stack testing. These violations are often classified as HPVs and are referred to the Division of Environmental Enforcement for enforcement action.
In FFY 2005, 101 tests were conducted and entered into AFS as of 9/30/05. It is likely that many other stack tests were performed but the information was not entered into AFS as the process for entering the data can be cumbersome when a large number of contaminants have been tested. For that reason, staff have deferred entering some of the data in AFS. The Department has been upgrading the AFS system during FFY 2005 to allow more efficient tracking methods for stack tests. Forty nine of the 101 stack tests tracked in AFS during FFY 2005 were recorded as witnessed by department staff.
MACT Tracking
The National Emission Standards for Hazardous Air Pollutants (NESHAPs) are air quality standards, issued under Section 112 of the Clean Air Act, which regulate 188 Hazardous Air Pollutants (HAPs) from industrial sources. These industry-based NESHAPs are also called Maximum Achievable Control Technology (MACT) standards. MACT standards are designed to reduce HAP emissions to a maximum achievable degree, taking into consideration the cost of reductions and other factors.
MACT certifications (notifications and reports) are tracked in AFS with the ability to search the permit and minor source registration databases by regulatory citation. It has been determined that 349 facilities have submitted information referring to one or more MACT regulations. This total does not include the several thousand dry cleaning establishments subject to Subpart M. However, it does include facilities that cited a regulation in order to cap out of it. The data was manually reviewed to determine which facilities have capped out of each regulation.
The table below lists the total number of facilities that have been associated to each MACT rule. The number in brackets reflects those facilities that have been confirmed as capping out of the MACT regulation. The total is greater than 349 as some facilities have cited more than one rule.
MACT Subparts - # of References [Known Caps]
- D - 1
Early Reductions - F - 7 [1]
HON - G - 6
HON - H - 7
HON-LDAR - I - 2 [1]
Negotiated HON - L - 2 [2]
Coke Oven Batteries - N - 60 [56]
Chromium Plating - O - 4 [4]
ETO Sterilizers - Q - 1 [1]
Cooling Towers - R - 45 [41]
Gasoline Distribution - S - 3
Pulp and Paper - T - 141 [131]
Halogenated Solvent Cleaning - X - 1
Secondary Lead - Y - 1
Marine Tank Vessel - DD - 3
Offsite Waste - EE - 1
Magnetic Tape - II - 1[1]
Shipbuilding - JJ - 19 [14]
Wood Furniture - KK - 28 [24 caps or compliance with 400 kg/month limit]
Printing & Publish. - LL - 2
Primary Aluminum - MM - 2
Pulp and Paper Combustion - PP - 1
Containers - VV - 1
Oil Water Separators & Organic-Water Separators - CCC - 1
Steel Pickling - EEE - 7
Haz. Waste Combust. - GGG - 4 [3]
Pharmaceuticals - HHH - 1 [1]
NG Trans. & Stor. - III - 1
Flex. Polyurethane Foam Pro - JJJ - 2
Group IV Polymers - LLL - 3
Portland Cement - NNN - 1
Wool Fiberglass - OOO - 1
Amino/Phenolic Resins - PPP - 1 [1]
Polyether Polyols - RRR - 12
Sec. Aluminum - VVV - 5 (all existing nonindustrial)
POTW - AAAA - 5
Municipal Solid Waste LF - EEEE - 1
Organic Liquid Distribution NESHAP - JJJJ - 3 [1]
Paper and Web coating - KKKK - 3
Metal can Surface Coating - MMMM - 3
Misc. Metal Parts Coating - RRRR - 1 [1]
Metal Furniture Surface
Coating - SSSS - 1 [1]
Metal Coil Coating - TTTT - 1
Leather Finishing - UUUU - 1
Cellulose Product Mfg. - WWWW - 1 [1]
Reinforced Plastic
Composite Const. - DDDDD - 26 [2]
Boilersand Process Heaters - GGGGG - 1 Site
Remediation NESHAP - NNNNN - 1
HydrochloricAcid and Fumed Silica
Title V Monitoring Reports and Compliance Certifications
All Title V permits issued in New York State require subject facilities to submit semi-annual monitoring reports and annual compliance certifications. The semi-annual monitoring reports contain a summary of compliance monitoring activities to be conducted by the facility. The facility operators must describe the monitoring status and report any deviations from permit limits. Report templates and instructions have been developed by the Department and have been distributed to all holders of Title V permits in the state. Annual Compliance Certifications include an in-depth assessment of a facilities compliance with permit requirements. Facilities must certify compliance with all conditions of their Title V permit.
All of the semi-annual monitoring reports and annual compliance certifications received are reviewed by regional staff to determine if the reporting requirement has been met fully and if the facility has complied with all applicable requirements. It is considered an HPV if a Title V facility fails to file its annual compliance certification. In the past, many facilities were cited for not submitting their certification on time. This is no longer a significant problem.
Reports are tracked in the Air Facility System (AFS) database. A total of 461 Semi-Annual Monitoring Reports were received and logged in FFY 2005, with 5 HPVs. Of the 493 Title V Annual Compliance Certifications that were logged in FFY 2005, 10 HPV violations were reported. Among the reports received, a total of 14 non HPV violations were found. In accordance with federal policy, the Department reports data regarding each Title V certification received to the AIRS database. Which includes: The date the report was due, the date it was reviewed and the result of the review.
The following table presents a summary of the Annual Certifications entered in AFS by each of the Department's nine regions during FFY 2005.
| Region | Certifications Due: | Certifications Received: | Worst Case Compliance Status For Those Received | |||||
|---|---|---|---|---|---|---|---|---|
| Total | Facilities | Total | Facilities | In Compliance |
Under Review/ No Determinations |
In Violation |
HPV | |
| 1 | 59 | 58 | 53 | 52 | 52 | 1 | 0 | 0 |
| 2 | 117 | 112 | 116 | 111 | 107 | 0 | 2 | 7 |
| 3 | 64 | 63 | 57 | 56 | 55 | 1 | 1 | 0 |
| 4 | 39 | 38 | 38 | 37 | 28 | 9 | 0 | 1 |
| 5 | 27 | 25 | 25 | 25 | 24 | 0 | 1 | 0 |
| 6 | 24 | 22 | 21 | 22 | 22 | 0 | 0 | 0 |
| 7 | 42 | 39 | 37 | 34 | 33 | 1 | 3 | 0 |
| 8 | 55 | 50 | 50 | 45 | 40 | 3 | 6 | 1 |
| 9 | 66 | 61 | 65 | 61 | 61 | 2 | 1 | 1 |
| Totals | 493 | 467 | 463 | 442 | 422 | 17 | 14 | 10 |
Periodic Compliance Monitoring
In addition to the Title V semi-annual and annual reporting requirements discussed above, there are many other compliance reports that regulated facilities must submit periodically. These could be monthly, quarterly, semi-annual or annual depending on the applicable regulations. For example, many Title V and non-Title V facilities are required to submit excess emissions reports on a quarterly basis. Some sources have monthly reporting requirements. These periodic reports are reviewed by the DEC Regional offices. The Central Office develops statewide guidance and provides an auditing function to assist the regions in determining compliance.
The Department's AFS system has the capability of tracking all monitoring reports required in issued permits. Regulatory requirements are set out in monitoring conditions in the Title V and State Facility permits which specify the appropriate schedule for reporting. While all Title V annual compliance certifications must be tracked in AIRS, there is no requirement that other periodic reports be reported to EPA in AIRS. The decision on whether to track these reports in AFS is made by the regional managers. Statistics are incomplete because of the flexibility allowed for the staff to track the information. Regardless, 2961 periodic certification reports were due at 795 facilities in FFY 2005. Of the reports that were entered into AFS as received, 2417 out of 2582 were in compliance (94%). Only nineteen of these reports included HPV level violations.
Environmental Justice Initiative
In last year's Enforcement Summary, it was reported that New York State completed an environmental justice initiative in FFY 2004 regarding compliance with 6 NYCRR Part 232 by perchloroethylene (perc) dry cleaners in New York City and Long Island. In fact, the final week of the initiative occurred in October, 2004 (FFY 2005). During that week an additional 19 facilities were found to be in violation of Part 232.
Enforcement Summary of Consent Orders FFY 2005
Below is a summary of enforcement actions during FFY 2005. During this time the Department collected a total of $2,412,450 payable penalties through 41 Consent Orders from High Priority Violators for air pollution related cases. In aggregate, a total of over $2,723,125 in payable penalties for air related cases was collected through 230 orders on consent.
Air Resources Consent Order Summary for FFY 2005
The table below shows the number of consent orders issued and the total payable penalties entered into AFS. It is broken down by HPV consent orders and non-HPV consent orders.
| Region | HPV's | $ Paid | Non-HPV's | $ Paid |
|---|---|---|---|---|
| 1 | 0 | $0 | 51 | $73,125 |
| 2 | 17 | $555,000 | 100 | $313,635 |
| 3 | 3 | $138,200 | 9 | $38,200 |
| 4 | 3 | $14,000 | 8 | $31,4500 |
| 5 | 0 | $0 | 8 | $30,000 |
| 6 | 5 | $65,500 | 3 | $3,500 |
| 7 | 5 | $397,650 | 6 | $19,500 |
| 8 | 6 | $562,500 | 8 | $50,499 |
| 9 | 2 | $46,500 | 1 | $10,000 |
| Totals | 41 | $1,779,350 | 194 | $569,859 |
In total, $2,349,209 was collected through 235 orders at both minor and major facilities. The reasons some of these orders are not considered HPV's include: the facility has emissions below the major threshold, the related regulation has not been approved into the State Implementation Plan or the violations are not gross as defined by the General HPV Criteria or the High Priority Violation Matrix.
Other orders from facilities not classified as major included violations of regulations such as open burning restrictions in Section 215.2, dry cleaning record keeping and monitoring required in Part 232, and Stage II requirements for downstate gasoline stations in violation of Part 230. A number of orders addressed Section 211.2 emissions of air contaminants to the outdoor atmosphere which were injurious to human, plant or animal life or to property, or which unreasonably interfered with the comfortable enjoyment of life or property and many minor facilities also signed consent orders for Part 201 permitting violations. In addition numerous diesel truck operators who left vehicles idling were cited for Subpart 217-3, Idling prohibition for heavy duty vehicles.
Stage I and II Facility Inspections
Joint routine inspections were performed at gasoline dispensing sites by personnel from the Central Office Division of Air Resources, the Regional Petroleum Bulk Storage (PBS) program, and the Division of Law Enforcement. A total of 107 inspections took place in the downstate NY Metro Area in FFY 2005. Reported cases of non-compliance under Part 230 Air Regulations included: failure to maintain equipment, operating a dispensing facility without proper vapor recovery testing, and dispensing gasoline without having the necessary vapor recovery equipment installed. Facilities that did not comply with the regulation were required to lock out any pumps that were in violation. Those facilities which had not installed the appropriate Stage I/II vapor recovery equipment were given a time period of which to come into compliance or cease dispensing fuel. If the facility refused to adhere to the conditions and terms of the order, Environmental Conservation Officer's were notified and assisted the inspectors in enforcing the regulation. An aggregate total of approximately $850,000 in civil penalties were issued to 102 non-compliant gas stations for violations of Air and PBS regulations. Approximately $212,000 in penalties are directly attributed to violations to the Part 230 air regulation. Two non-compliant facilities denied allegations within their consent order and opted for a formal hearing in front of an administrative law judge. The department is still waiting for rulings as a result of these hearings.
Stage II Vapor Recovery Testing Outreach
Stage II vapor recovery testing is required to be performed at gas stations every 5 years. The New York State Environmental Facilities Corporation have begun mailing "Vapor Recovery Testing Reminder Notices" to stations which have test results due to expire. These notices are mailed three months prior to the vapor recovery testing due date and are part of an on going outreach effort to assist with compliance of testing requirements.
Stage II Test Reporting
In FFY 2005, 525 gasoline service stations have submitted reports indicating they have passed the pressure decay, blockage, and leak tests required by Part 230. In addition, 76 test reports were received that indicate failure of one or multiple tests required in Part 230. All service stations in the New York City Metropolitan Area, Westchester, Rockland, Nassau, Suffolk and Lower Orange Counties are required to submit the compliance testing results to the Department every five years.
Portable Gasoline Container Enforcement
As part of an enforcement effort of the Part 239 portable fuel container regulation, the Department initiated enforcement against five facilities after discovering the sale of nine noncompliant portable fuel containers. These containers were found while performing Stage I and II vapor recovery inspections at gasoline dispensing sites. Each facility entered into a consent order with the Department and were assessed a $375 penalty per noncompliant container offered for sale.
Architectural and Industrial Maintenance (AIM) Coatings Enforcement
Staff inspected thirteen retail paint stores for compliance with Part 205 coating regulations. Several different types of architectural and industrial maintenance coating products were purchased. To verify VOC content, several samples were tested under Method 27 protocol utilizing an ELAP certified lab. Of the products purchased and tested, nine manufacturers and two retail paint stores were found to be in violation. Reported cases of non-compliance ranged from VOC content that exceeds the requirements bound in the regulation to improperly labeling of containers. Seven manufacturers and two retail paint stores have entered into consent order with the department and have paid $6600 in penalties.
Major facility cases to date for the FFY 2005
- A consent order issued to Eastman Kodak Company, Inc. for an industrial facility located in the City of Rochester and the Town of Greece (commonly referred to as Kodak Park) on February 18, 2005 for Title V permit violations disclosed between February 20, 2003 and June 30, 2004. The violations were disclosed in semi-annual reports and annual compliance certifications required by the permit. These Title V violations were part of a consent order that included violations of other environmental regulations as well. The order included a payable penalty of $100,000 and the funding of an Environmental Benefit Project to stimulate public interest in and education about the resident peregrine falcon territories located in downtown Rochester as well as active bald eagle territories in the area.
- A consent order issued to New York City Health and Hospitals Corporation for the Queens Hospital Center located at 82-68 164th Street in Jamaica, New York on May 9, 2005 for failing to submit a timely Title V facility permit application, construction and operation of new boilers without appropriate registrations or permits, and failure to provide timely notification to EPA. The facility was found in violation of 6 NYCRR Part 201-6.2(b) and Part 201-6.9 Appendix B for failing to submit the appropriate Title V permit application by December 9, 1997. The facility violated 6 NYCRR Part 201-1.1(b) and Part 231-2.3(a) in February 1998 by constructing and operating three new boilers without first having obtained the necessary air facility registrations and permits for these boilers. The facility also violated several federal regulations in 40 CFR Part 60.48 and Part 60.7 by failing to notify EPA of the construction and the initial startup of the three new boilers. The order included a payable penalty of $100,000 and required the facility to notify the EPA Administrator in writing of the construction and startup dates of the three new boilers.
- A consent order issued to Visy Paper, Inc. for the waste paper recycling and box-making plant located at 4435 Victory Boulevard in Staten Island, New York. The order was issued on May 5, 2005 for violations of the New Source Performance Standard regulation set forth in 40 CFR 60 Subpart Db and Schedule A of the Order on Consent executed on December 17, 2001. The facility failed to report downtime in its oxygen and/or NOx monitors at the facility and failed to maintain compliance in regards to the facility's CEM system. The facility failed to provide emissions data for a minimum of 75% of the operating hours in each operating day, in at least 22 out of 30 consecutive days as required by 40 CFR Part 60.48(f). The facility also failed to timely submit a "Use of Emission Reduction Credit Form" which resulted in credits not noticed in accordance with the requirements of 6 NYCRR Part 231-2.4(b)(1). Therefore, the credits were not legally committed to the project. The order included a payable penalty of $105,000 and the facility was required to comply with a schedule of compliance. The facility was required to perform a Root Cause Analysis to review the performance of NOx CEMs in 2000, 2001, and 2002 to determine the cause of downtime and identify future preventive measures. This includes the revision of the Quality Assurance Plan for the NOx CEMs. The facility also was required to comply with special operating conditions including total facility-wide NOx and VOC limits using emission factors for periods when valid data was not obtained, maintenance of records of fuel use, and limitations on types of fuel used.
- A consent order was issued to New York Organic Fertilizer Company for the sludge drying and pelletization facility located in Bronx, New York. The ordered was issued on December 14, 2004 for violation of 6 NYCRR Part 201-6.5(a)(2) for failure to comply with special conditions of the facility Title V permit. This included failure to vent emissions from the facility to required air pollution control equipment, and exceedance of NOx emission limits and destruction efficiency during stack testing. Violations of other environmental regulations such as solid waste and water were also part of the order. The order included a payable penalty of $75,000 and the facility was required to comply with a schedule of compliance to rectify these violations.
