To determine whether the Department of Environmental Conservation is taking necessary action to adequately enforce certain aspects of the State’s air contamination and pollution requirements to protect the public and environment from the adverse effects of exposure to pollutants. The audit covered permit and registration data from January 2020 through April 2022 and Department activities related to these permits and registrations through February 2023.
About the Program
Air pollution damages human health and the environment in a variety of ways. It can make breathing difficult, cause cancer, and contribute to other serious health effects. Fish and wildlife show harmful effects from acid rain and mercury in the air. Also, greenhouse gases (chiefly carbon dioxide) in the air are changing the world’s climate. Sources of air pollution range from large sources, such as chemical plants and electricity generating facilities, to smaller sources like dry cleaners. The mission of the Department of Environmental Conservation (Department) is to conserve, improve, and protect the State’s natural resources and environment. The Department issues air pollution control permits and registrations in accordance with its federally approved Air Pollution Control Permitting Program (Program) under Title 6, Part 201, of the New York Codes, Rules and Regulations (Regulation). The Regulation, along with the Uniform Procedures Act (Article 70 of the Environmental Conservation Law) and its implementing regulations, contains the requirements that certain facilities that generate air pollution, and the Department, must follow for air permit application and permitting processes. Permit or registration type is based on a source’s potential to emit air contaminants. There are three broad categories of facilities that are required to be either permitted or registered with the Department: Title V Facilities (Title Vs), Air State Facilities (ASFs), and Air Facility Registrations (AFRs).
- Title Vs are major sources of air pollution – those that directly emit, or have the potential to emit, air contaminants above federal major source thresholds.
- ASFs are large facilities with sources of air pollution that emit, or have the potential to emit, less than federal major source thresholds.
- AFRs are minor sources of air pollution. AFRs fall into two general categories: those that naturally emit less than 50% of major facility thresholds and those that “cap-by-rule.” Cap-by-rule facilities have the potential to emit air contaminants at or above the threshold of a large source but choose to limit actual annual emissions. The owners or operators of cap-by-rule facilities agree to adhere to additional record-keeping and self-monitoring requirements to demonstrate compliance with the emissions cap.
Title Vs include facilities such as solid waste incineration units (e.g., municipal waste combustors), landfills, manufacturing facilities, and hospitals. ASFs are similar to Title Vs, and may be landfills, manufacturing facilities, mills for refining grain, and the like, but the facilities’ potential to emit air pollution is less than the major source thresholds and therefore does not put them in the same category as a Title V facility. ASFs are further categorized as Natural Minor, Synthetic Minor, and Synthetic Minor-80 facilities. AFRs are minor sources of air pollution such as dry cleaners and autobody shops (with paint sprayers).
To obtain an air permit, a facility owner or operator must complete an application that includes information about the facility’s emissions and other operating processes, like raw material usage, permits. When an application is received, Department staff review the application for environmental justice (EJ) concerns. The Department’s Environmental Justice Permitting Policy (Policy) outlines the Department’s responsibilities for incorporating EJ into its review of air permit applications. The goal of the Policy is to allow residents within potential EJ communities to obtain information – by requiring applicants covered by the Policy to actively seek public participation through the permit review process – allowing stakeholders to better participate in the decision-making process. Actions should include, among other measures, establishing document repositories in or near the potential EJ area to make pertinent project information available, such as studies, reports, media releases, and the like. The Policy applies only to Title V and ASF applications received after April 18, 2003. Permits issued prior to April 18, 2003 are exempt from its provisions, as are renewals, minor projects, minor modifications, and registrations.
The State Administrative Procedure Act (SAPA) states that an operating permit for a Title V or ASF facility does not expire if application for renewal occurs at least 180 days before the expiration date. If applicable, the permit is classified as SAPA extended and remains valid with no specific limit on how long, unless revoked. Department data indicated that, as of April 2022, there were 8,941 facilities operating under permits or registrations in the State, including 324 Title Vs, 748 ASFs, and 7,869 AFRs. For additional information on permitted and registered facilities throughout the State, use the link at the top of this page to explore our interactive maps.
We identified weaknesses in several aspects of the Department’s oversight of the Program – namely, implementation of the Policy and monitoring of permitted and registered facilities – that reduce its ability to ensure compliance with the Program and protect the State’s air from harmful pollutants.
- Gaps in the Policy create a risk that the Department’s air permitting process is not adequately allowing residents, particularly low-income and minority communities across the State within potential EJ communities, to obtain information about the harmful effects of pollution emitted in their communities and limiting opportunities to address concerns about their community’s air quality, which could disproportionally impact residents of EJ areas. From 2011 to 2021, many areas of the State experienced significant shifts in populations and incomes, yet the Department continued to use its outdated static maps from 2003, despite having updated data in 2011 (the year the map could have first been updated with U.S. Census Bureau data), resulting in a 10-year data gap. See our interactive maps demonstrating the effects of this change. Of 71 facilities permitted in the EJ areas that we reviewed, 55 were exempt from EJ requirements. Most of the exempt facilities (35) applied for permits before the Department’s implementation of EJ requirements in 2003 – seven were for minor projects or projects that were never executed and 13 are located in an area that was defined as EJ by the 2021 map criteria but was not defined as EJ at the time of the initial application according to the 2003 maps. While the Policy requires the Department to periodically evaluate the need for revision, the Policy has not been updated since its implementation 20 years ago.
- While SAPA extensions allow Title V and ASF facilities to operate beyond their permit expiration date, and the Department monitors facilities under the original permit conditions, the longer the permits remain extended, the greater the risk that facilities are not operating under requirements that align with the most up-to-date air pollution control standards. For example, one permit for a Title V facility would have expired in September 2021; however, the facility submitted its renewal application timely in March 2021 and therefore qualified for SAPA extension. The facility, since the initial permit was issued, had shifted its operations to cryptocurrency mining, with projected emissions equating to more than six times its previous emissions over a 4-year period. The Department ultimately denied the renewal as the facility’s increase in greenhouse gas emissions did not align with the newly issued Climate Leadership and Community Protection Act. The facility has challenged the Department’s decision and continues to operate under its previous permit in accordance with SAPA.
- We also found the Department is not always taking action to enforce compliance with the Program for facilities operating without a valid permit. We identified three facilities (two Title Vs and one ASF) operating without permits, in violation of the Program. While the three facilities – a correctional institution, a sewage treatment plant, and a scrap metal recycler – are operating without a valid permit, they are still being monitored by the Department under the prior permit conditions.
- Improve monitoring and enforcement of EJ requirements.
- Enhance oversight of the general Program compliance, which may include, but not be limited to:
- Developing a course of action to address the upcoming influx of expired permits and registrations,
- Reducing the populations of facilities operating under permits or registrations with no expiration date; and
- Addressing long delays in processing SAPA extended permits to reduce the number of facilities operating with outdated permits.
- Focus efforts on monitoring and enforcement of AFRs’ compliance with Program requirements, which may include, but not be limited to:
- Performing additional risk-based inspections of AFRs;
- Improving follow-up with inspection deficiencies to ensure violations are corrected; and
- Issuing additional guidance on eligibility for cap-by-rule classification.
State Government Accountability Contact Information:
Audit Director: Nadine Morrell
Phone: (518) 474-3271; Email: [email protected]
Address: Office of the State Comptroller; Division of State Government Accountability; 110 State Street, 11th Floor; Albany, NY 12236