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

Permit to Construct and Certificate to Operate Violations - 6 NYCRR Part 201

I. Purpose

The purpose of this Enforcement Guidance Memorandum (EGM) is to establish the Department's enforcement strategy for addressing the failure of certain types of sources to obtain permits to construct and/or certificates to operate. This guidance does not apply to air violations characterized as Class I High Priority violations according to Enforcement Guidance Memorandum II.9 nor to major source violations. The chief purpose of this Appendix to EGM II.9 is to establish a uniform range of penalties that Department staff should seek in prosecution of certain sources that do not hold requisite part 201 permits and approvals. Substantive violations of other Regulations and the failure to adhere to other reporting and pollution control regulations should be addressed in addition to any failure to be permitted.

II. Background

Part 201 has its origins in air pollution law dating back to 1962 when responsibility for air pollution control rested with the Department of Health. At least since 1972, no source of air contamination within the state, unless otherwise specifically exempted, has been allowed without prior authorization by DEC or a local government delegate. The list of the exempted sources is set forth at 6 NYCRR Section 201.6. An accurate inventory of emission sources is absolutely critical to the State Implementation Plan process and provides for orderly and fair implementation and cost allocation of the State's air pollution control effort. The Department's Civil Penalty Policy recognizes the high priority placed on maintaining through vigorous enforcement the integrity of the self reporting and registration systems used to carry out various regulatory programs required by the Legislature in the ECL.

For the most part the Division of Air Resources (DAR) has confidence that the current inventory of permitted sources is largely complete. Notwithstanding this fact, there is the Continuing need to pull into the regulatory framework previously unregulated sources and to detect and regulate some sources in industry categories that have been previously identified.

The specific range of responses set forth in this EGM apply to the following categories of sources:

  1. Stationary combustion installations with a heat input less than 50 million BTU/hour;
  2. Process sources with actual emissions less than 10 tons per year; and
  3. Incinerators with a charging rate less than 2,000 pounds per hour.

III. Enforcement Strategy

Enforcement for failure to secure a permit to construct or certificate to operate shall receive attention in all regions and the intensity of such action shall be consistent with the need to address higher priority matters first. One of the chief goals of this EGM will be to spur voluntary compliance and to establish a Penalty structure that has adequate incentive to encourage early voluntary compliance.

No permit to construct or certificate to operate may be issued Without reference to the permit applicant's compliance status and the requirement to address that violation in accord with this guidance. In short, penalties shall be sought in all instances of documentable violation and shall be in accord with the range set forth here for administrative settlements of the Respondent's statutory liability for penalties under ECL Article 71 and statutory regulatory fees. This EGM therefore applies to civil/administrative settlements of actions commenced by ECOS.

IV. Enforcement Responses

Elements and the types of enforcement responses that DEC may take are described in the main body of this EGM and Appendix II and include: notices of Compliance Determination/Notice of Violation (NOCD/NOV); administrative Orders, be they "On Consent," short form or after Hearing; Environmental Conservation Appearance Tickets (ECAT); Referral to Attorney General or District Attorney for prosecution, Referral to EPA; and initiation of permit actions, such as revocation, suspension or modification.

While it is categorically not a requirement of law that DEC issue NOVs or conduct outreach programs to inform violators of long standing legal obligations, such efforts should be undertaken to both promote voluntary compliance and to lay the ground work for an Effective deterrence program of enforcement. Where such efforts have occurred, penalties should be higher, especially in those Circumstances where the Department can prove issuance of some form of prior notice directly to the violator. However, this guidance stands for the proposition that ignorance of the law is no excuse And that some penalty liability should attach for Part 201 violations even where DEC cannot prove prior issuance of an NOV. Hence, those sources that delay in compliance should be penalized more than those that came into compliance on their own or earlier. This is only fair in light of compliance costs borne by other members of each regulated source category.

Enforcement Responses
Source owner voluntarily applies for Permit to Construct and/or certificate to Operate after source is in operation. $150-$300 plus regulatory fees avoided.
Source owner applies for Permit to Construct within 30 days of issuance of an NOCD or ECAT requiring either abatement or application within 30 days. $300-$500 per permit to construct per emission point plus $300-$500 per certificate to operate per emission point plus outstanding regulatory fees avoided in administrative settlements. Actions going to trial should be prosecuted for higher penalties as appropriate.
Source owner fails to apply for requisite Permit to Construct and/or Certificate to Operate after issuance of NOCD/NOV. Issue ECAT for ECL Section 71-2105 misdemeanor or short-form Administrative Complaint. No administrative settlements for less than $1,000 - $2,000 per emission point per violation plus regulatory fees avoided. Actions going to trial should be prosecuted for higher penalties as appropriate.

Environmental enforcement officers and Air Resources staff finding actionable substantive violations and/or circumstances which in their judgement require alternate responses may vary from this guidance. One such circumstance is where the enforcement staff Can sustain a case that permit requirements were deliberately evaded to accelerate construction of new sources.

Administrative settlements should include substantial stipulated penalties to ensure faithful implementation of compliance schedules.

This guidance is effective immediately.

DATED: Albany, New York

March 21, 1991

Thomas C. Jorling

Commissioner of Environmental Conservation

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