S T A T E O F N E W Y O R K ________________________________________________________________________ 4458 2009-2010 Regular Sessions I N S E N A T E April 23, 2009 ___________ Introduced by Sen. SERRANO -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conservation AN ACT to amend the environmental conservation law, in relation to reducing the emission of pollutants from diesel fuel-powered motor vehicles owned by agencies of cities with populations over 45,000 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The environmental conservation law is amended by adding a 2 new section 19-0306-b to read as follows: 3 S 19-0306-B. USE OF ULTRA LOW SULFUR DIESEL FUEL AND BEST AVAILABLE 4 RETROFIT TECHNOLOGY BY DIESEL FUEL-POWERED MOTOR VEHI- 5 CLES IN CITIES WITH POPULATIONS OVER FORTY-FIVE THOU- 6 SAND. 7 1. DEFINITIONS. WHEN USED IN THIS SECTION: 8 A. "BEST AVAILABLE RETROFIT TECHNOLOGY" MEANS TECHNOLOGY, VERIFIED BY 9 THE EPA OR THE CALIFORNIA AIR RESOURCES BOARD, FOR REDUCING THE EMIS- 10 SION OF POLLUTANTS THAT ACHIEVES REDUCTIONS IN PARTICULATE MATTER EMIS- 11 SIONS AT THE HIGHEST CLASSIFICATION LEVEL FOR DIESEL EMISSION CONTROL 12 STRATEGIES, AS SET FORTH IN SUBDIVISION FOUR OF THIS SECTION, THAT IS 13 APPLICABLE TO THE PARTICULAR ENGINE AND APPLICATION. SUCH TECHNOLOGY 14 SHALL ALSO, AT A REASONABLE COST, ACHIEVE THE GREATEST REDUCTION IN 15 EMISSIONS OF NITROGEN OXIDES AT SUCH PARTICULATE MATTER REDUCTION LEVEL 16 AND SHALL IN NO EVENT RESULT IN A NET INCREASE IN THE EMISSIONS OF 17 EITHER PARTICULATE MATTER OR NITROGEN OXIDES. 18 B. "CITY AGENCY" MEANS A CITY, COUNTY, BOROUGH, ADMINISTRATION, 19 DEPARTMENT, DIVISION, BUREAU, BOARD OR COMMISSION, OR A CORPORATION, 20 INSTITUTION OR AGENCY OF GOVERNMENT, THE EXPENSES OF WHICH ARE PAID IN 21 WHOLE OR IN PART FROM THE CITY TREASURY. 22 C. "GROSS VEHICLE WEIGHT RATING" MEANS THE VALUE SPECIFIED BY THE 23 MANUFACTURER OF A MOTOR VEHICLE MODEL AS THE MAXIMUM DESIGN LOADED 24 WEIGHT OF A SINGLE VEHICLE OF THAT MODEL. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11295-01-9 S. 4458 2 1 D. "MOTOR VEHICLE" MEANS A VEHICLE OPERATED OR DRIVEN UPON A PUBLIC 2 HIGHWAY WHICH IS PROPELLED BY ANY POWER OTHER THAN MUSCULAR POWER, 3 EXCEPT ELECTRICALLY-DRIVEN MOBILITY ASSISTANCE DEVICES OPERATED OR DRIV- 4 EN BY A PERSON WITH A DISABILITY, PROVIDED, HOWEVER, THAT THIS TERM 5 SHALL NOT INCLUDE VEHICLES THAT ARE SPECIALLY EQUIPPED FOR EMERGENCY 6 RESPONSE BY CITY FIRE, POLICE, SHERIFF OR RESCUE DEPARTMENTS. 7 E. "PERSON" MEANS ANY NATURAL PERSON, CO-PARTNERSHIP, FIRM, COMPANY, 8 ASSOCIATION, JOINT STOCK ASSOCIATION, CORPORATION OR OTHER LIKE ORGAN- 9 IZATION. 10 F. "REASONABLE COST" MEANS THAT SUCH TECHNOLOGY DOES NOT COST GREATER 11 THAN THIRTY PERCENT MORE THAN OTHER TECHNOLOGY APPLICABLE TO THE PARTIC- 12 ULAR ENGINE AND APPLICATION THAT FALLS WITHIN THE SAME CLASSIFICATION 13 LEVEL FOR DIESEL EMISSION CONTROL STRATEGIES, AS SET FORTH IN SUBDIVI- 14 SION FOUR OF THIS SECTION, WHEN CONSIDERING THE COST OF THE STRATEGIES, 15 THEMSELVES, AND THE COST OF INSTALLATION. 16 G. "ULTRA LOW SULFUR DIESEL FUEL" MEANS DIESEL FUEL THAT HAS A SULFUR 17 CONTENT OF NO MORE THAN FIFTEEN PARTS PER MILLION. 18 2. A. EACH DIESEL FUEL-POWERED MOTOR VEHICLE OWNED OR OPERATED BY A 19 CITY AGENCY SHALL BE POWERED BY ULTRA LOW SULFUR DIESEL FUEL. 20 B. DIESEL FUEL-POWERED MOTOR VEHICLES HAVING A GROSS VEHICLE WEIGHT 21 RATING OF MORE THAN EIGHTY-FIVE HUNDRED POUNDS THAT ARE OWNED OR OPER- 22 ATED BY CITY AGENCIES SHALL UTILIZE THE BEST AVAILABLE RETROFIT TECHNOL- 23 OGY OR BE EQUIPPED WITH AN ENGINE CERTIFIED TO THE APPLICABLE TWO THOU- 24 SAND SEVEN EPA STANDARD FOR PARTICULATE MATTER AS SET FORTH IN SECTION 25 86.007-11 OF TITLE 40 OF THE CODE OF FEDERAL REGULATIONS OR TO ANY 26 SUBSEQUENT EPA STANDARD FOR SUCH POLLUTANT THAT IS AT LEAST AS STRIN- 27 GENT, PURSUANT TO THE FOLLOWING SCHEDULE: 28 (I) 7% OF ALL SUCH MOTOR VEHICLES BY JANUARY 1, 2010; 29 (II) 14% OF ALL SUCH MOTOR VEHICLES BY JANUARY 1, 2011; 30 (III) 30% OF ALL SUCH MOTOR VEHICLES BY JANUARY 1, 2012; 31 (IV) 50% OF ALL SUCH MOTOR VEHICLES BY JANUARY 1, 2013; 32 (V) 70% OF ALL SUCH MOTOR VEHICLES BY JANUARY 1, 2014; 33 (VI) 90% OF ALL SUCH MOTOR VEHICLES BY JANUARY 1, 2015; 34 (VII) 100% OF ALL SUCH MOTOR VEHICLES BY JULY 1, 2015. 35 3. A. THE COMMISSIONER SHALL MAKE DETERMINATIONS, AND SHALL PUBLISH A 36 LIST CONTAINING SUCH DETERMINATIONS, AS TO THE BEST AVAILABLE RETROFIT 37 TECHNOLOGY TO BE USED FOR EACH TYPE OF DIESEL FUEL-POWERED MOTOR VEHICLE 38 TO WHICH THIS SECTION APPLIES. EACH SUCH DETERMINATION SHALL BE REVIEWED 39 AND REVISED, AS NEEDED, ON A REGULAR BASIS, BUT IN NO EVENT LESS OFTEN 40 THAN ONCE EVERY SIX MONTHS. 41 B. THE COMMISSIONER MAY DETERMINE THAT A TECHNOLOGY, WHETHER OR NOT IT 42 HAS BEEN VERIFIED BY THE EPA OR THE CALIFORNIA AIR RESOURCES BOARD, MAY 43 BE APPROPRIATE TO TEST, ON AN EXPERIMENTAL BASIS, ON A PARTICULAR TYPE 44 OF DIESEL FUEL-POWERED MOTOR VEHICLE OWNED OR OPERATED BY A CITY AGENCY. 45 THE COMMISSIONER MAY AUTHORIZE SUCH TECHNOLOGY TO BE INSTALLED ON UP TO 46 FIVE PERCENT OR TWENTY-FIVE OF SUCH TYPE OF MOTOR VEHICLE, WHICHEVER IS 47 LESS. ANY MOTOR VEHICLE ON WHICH SUCH TECHNOLOGY IS INSTALLED MAY BE 48 COUNTED FOR THE PURPOSE OF MEETING THE REQUIREMENTS OF PARAGRAPH A OF 49 SUBDIVISION TWO OF THIS SECTION. SUCH TECHNOLOGY SHALL NOT BE REQUIRED 50 TO BE INSTALLED ON OTHER MOTOR VEHICLES OF THE SAME TYPE AND SHALL BE 51 SUBJECT TO THE PROVISIONS OF PARAGRAPH C OF THIS SUBDIVISION. 52 C. NO CITY AGENCY SHALL BE REQUIRED TO REPLACE BEST AVAILABLE RETROFIT 53 TECHNOLOGY OR EXPERIMENTAL TECHNOLOGY UTILIZED FOR A DIESEL FUEL-POWERED 54 MOTOR VEHICLE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION WITHIN 55 THREE YEARS OF HAVING FIRST UTILIZED SUCH TECHNOLOGY FOR SUCH VEHICLE, 56 EXCEPT THAT TECHNOLOGY THAT FALLS WITHIN LEVEL FOUR, AS SET FORTH IN S. 4458 3 1 SUBDIVISION FOUR OF THIS SECTION, SHALL NOT BE REQUIRED TO BE REPLACED 2 UNTIL IT HAS REACHED THE END OF ITS USEFUL LIFE. 3 4. THE CLASSIFICATION LEVELS FOR DIESEL EMISSION CONTROL STRATEGIES 4 ARE AS FOLLOWS, WITH LEVEL FOUR BEING THE HIGHEST CLASSIFICATION LEVEL: 5 A. LEVEL FOUR - STRATEGY REDUCES DIESEL PARTICULATE MATTER EMISSIONS 6 BY EIGHTY-FIVE PERCENT OR GREATER OR REDUCES ENGINE EMISSIONS TO LESS 7 THAN OR EQUAL TO 0.01 GRAMS DIESEL PARTICULATE MATTER PER BRAKE HORSE- 8 POWER-HOUR; 9 B. LEVEL THREE - STRATEGY REDUCES DIESEL PARTICULATE MATTER EMISSIONS 10 BY BETWEEN FIFTY AND EIGHTY-FOUR PERCENT; 11 C. LEVEL TWO - STRATEGY REDUCES DIESEL PARTICULATE MATTER EMISSIONS BY 12 BETWEEN TWENTY-FIVE AND FORTY-NINE PERCENT; 13 D. LEVEL ONE - STRATEGY REDUCES DIESEL PARTICULATE MATTER EMISSIONS BY 14 BETWEEN TWENTY AND TWENTY-FOUR PERCENT. 15 5. THE COMMISSIONER SHALL ISSUE A WRITTEN DETERMINATION THAT PERMITS 16 THE USE OF DIESEL FUEL THAT HAS A SULFUR CONTENT OF NO MORE THAN THIRTY 17 PARTS PER MILLION TO FULFILL THE REQUIREMENTS OF THIS SECTION IF ULTRA 18 LOW SULFUR DIESEL FUEL IS NOT AVAILABLE TO MEET THE NEEDS OF CITY AGEN- 19 CIES TO FULFILL THE REQUIREMENTS OF THIS SECTION. SUCH DETERMINATION 20 SHALL EXPIRE AFTER SIX MONTHS AND SHALL BE RENEWED IN WRITING EVERY SIX 21 MONTHS IF SUCH LACK OF AVAILABILITY PERSISTS, BUT IN NO EVENT SHALL BE 22 IN EFFECT AFTER SEPTEMBER FIRST, TWO THOUSAND TEN. 23 6. THE COMMISSIONER MAY ISSUE A WAIVER FOR THE USE OF ULTRA LOW SULFUR 24 DIESEL FUEL WHERE A CITY AGENCY MAKES A WRITTEN FINDING, WHICH IS 25 APPROVED, IN WRITING, BY THE COMMISSIONER, THAT A SUFFICIENT QUANTITY OF 26 ULTRA LOW SULFUR DIESEL FUEL, OR DIESEL FUEL THAT HAS A SULFUR CONTENT 27 OF NO MORE THAN THIRTY PARTS PER MILLION WHERE A DETERMINATION IS IN 28 EFFECT PURSUANT TO SUBDIVISION FIVE OF THIS SECTION, IS NOT AVAILABLE TO 29 MEET THE REQUIREMENTS OF THIS SECTION, PROVIDED THAT SUCH AGENCY, TO THE 30 EXTENT PRACTICABLE, SHALL USE WHATEVER QUANTITY OF ULTRA LOW SULFUR 31 DIESEL FUEL OR DIESEL FUEL THAT HAS A SULFUR CONTENT OF NO MORE THAN 32 THIRTY PARTS PER MILLION IS AVAILABLE FOR ITS DIESEL FUEL-POWERED MOTOR 33 VEHICLES. ANY WAIVER ISSUED PURSUANT TO THIS SUBDIVISION SHALL EXPIRE 34 AFTER TWO MONTHS, UNLESS THE CITY AGENCY RENEWS THE FINDING, IN WRITING, 35 AND THE COMMISSIONER APPROVES SUCH RENEWAL, IN WRITING. 36 7. A. NOT LATER THAN JANUARY FIRST, TWO THOUSAND ELEVEN, AND NOT LATER 37 THAN JANUARY FIRST OF EACH YEAR THEREAFTER, THE COMMISSIONER SHALL 38 SUBMIT A REPORT TO THE LEGISLATURE REGARDING, AMONG OTHER THINGS, THE 39 USE OF ULTRA LOW SULFUR DIESEL FUEL AND THE USE OF THE BEST AVAILABLE 40 RETROFIT TECHNOLOGY BY DIESEL FUEL-POWERED MOTOR VEHICLES OWNED OR OPER- 41 ATED BY CITY AGENCIES DURING THE IMMEDIATELY PRECEDING CALENDAR YEAR. 42 THE INFORMATION CONTAINED IN THE REPORT REQUIRED BY THIS SUBDIVISION 43 SHALL INCLUDE, BUT NOT BE LIMITED TO, FOR EACH CITY AGENCY: 44 (I) THE TOTAL NUMBER OF DIESEL FUEL-POWERED MOTOR VEHICLES OWNED OR 45 OPERATED BY SUCH AGENCY; 46 (II) THE NUMBER OF SUCH MOTOR VEHICLES THAT WERE POWERED BY ULTRA LOW 47 SULFUR DIESEL FUEL; 48 (III) THE TOTAL NUMBER OF DIESEL FUEL-POWERED MOTOR VEHICLES OWNED OR 49 OPERATED BY SUCH AGENCY HAVING A GROSS VEHICLE WEIGHT RATING OF MORE 50 THAN EIGHTY-FIVE HUNDRED POUNDS; 51 (IV) THE NUMBER OF SUCH MOTOR VEHICLES THAT UTILIZED THE BEST AVAIL- 52 ABLE RETROFIT TECHNOLOGY, INCLUDING A BREAKDOWN BY MOTOR VEHICLE MODEL, 53 ENGINE YEAR AND THE TYPE OF TECHNOLOGY USED FOR EACH VEHICLE; 54 (V) THE NUMBER OF SUCH MOTOR VEHICLES THAT ARE EQUIPPED WITH AN ENGINE 55 CERTIFIED TO THE APPLICABLE TWO THOUSAND SEVEN EPA STANDARD FOR PARTICU- 56 LATE MATTER AS SET FORTH IN SECTION 86.007-11 OF TITLE 40 OF THE CODE OF S. 4458 4 1 FEDERAL REGULATIONS OR TO ANY SUBSEQUENT EPA STANDARD FOR PARTICULATE 2 MATTER THAT IS AT LEAST AS STRINGENT; 3 (VI) THE NUMBER OF SUCH MOTOR VEHICLES THAT UTILIZED TECHNOLOGY IN 4 ACCORDANCE WITH PARAGRAPH B OF SUBDIVISION THREE OF THIS SECTION AND THE 5 RESULTS AND ANALYSES REGARDING THE TESTING OF SUCH TECHNOLOGY; AND 6 (VII) ALL WAIVERS, FINDINGS, AND RENEWALS OF SUCH FINDINGS, ISSUED 7 PURSUANT TO SUBDIVISION SIX OF THIS SECTION, WHICH, FOR EACH WAIVER, 8 SHALL INCLUDE, BUT NOT BE LIMITED TO, THE QUANTITY OF DIESEL FUEL NEEDED 9 TO POWER DIESEL FUEL-POWERED MOTOR VEHICLES OWNED OR OPERATED BY SUCH 10 AGENCY; SPECIFIC INFORMATION CONCERNING THE AVAILABILITY OF ULTRA LOW 11 SULFUR DIESEL FUEL OR DIESEL FUEL THAT HAS A SULFUR CONTENT OF NO MORE 12 THAN THIRTY PARTS PER MILLION WHERE A DETERMINATION IS IN EFFECT PURSU- 13 ANT TO SUBDIVISION FIVE OF THIS SECTION; AND DETAILED INFORMATION 14 CONCERNING THE AGENCY'S EFFORTS TO OBTAIN ULTRA LOW SULFUR DIESEL FUEL 15 OR DIESEL FUEL THAT HAS A SULFUR CONTENT OF NO MORE THAN THIRTY PARTS 16 PER MILLION WHERE A DETERMINATION IS IN EFFECT PURSUANT TO SUBDIVISION 17 FIVE OF THIS SECTION. 18 B. WHERE A DETERMINATION IS IN EFFECT PURSUANT TO SUBDIVISION FIVE OF 19 THIS SECTION, INFORMATION REGARDING DIESEL FUEL THAT HAS A SULFUR 20 CONTENT OF NO MORE THAN THIRTY PARTS PER MILLION SHALL BE REPORTED WHER- 21 EVER INFORMATION IS REQUESTED FOR ULTRA LOW SULFUR DIESEL FUEL PURSUANT 22 TO PARAGRAPH A OF THIS SUBDIVISION. 23 C. THE REPORT DUE JANUARY FIRST, TWO THOUSAND ELEVEN, IN ACCORDANCE 24 WITH PARAGRAPH A OF THIS SUBDIVISION SHALL ONLY INCLUDE THE INFORMATION 25 REQUIRED PURSUANT TO SUBPARAGRAPHS (I), (II) AND (VII) OF SUCH PARA- 26 GRAPH. 27 8. THIS SECTION SHALL NOT APPLY: 28 A. WHERE FEDERAL OR STATE FUNDING PRECLUDES A CITY FROM IMPOSING THE 29 REQUIREMENTS OF THIS SECTION; OR 30 B. TO PURCHASES THAT ARE EMERGENCY PROCUREMENTS PURSUANT TO LOCAL LAW. 31 9. IF ANY SUBDIVISION, PARAGRAPH, CLAUSE, PHRASE OR OTHER PORTION OF 32 THIS SECTION IS, FOR ANY REASON, DECLARED UNCONSTITUTIONAL OR INVALID, 33 IN WHOLE OR IN PART, BY ANY COURT OF COMPETENT JURISDICTION SUCH PORTION 34 SHALL BE DEEMED SEVERABLE, AND SUCH UNCONSTITUTIONALITY OR INVALIDITY 35 SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION, 36 WHICH REMAINING PORTIONS SHALL CONTINUE IN FULL FORCE AND EFFECT. 37 S 2. This act shall take effect on the one hundred eightieth day after 38 it shall have become a law. Effective immediately the commissioner of 39 environmental conservation is authorized to add, amend, and/or repeal 40 any rule or regulation necessary for the implementation of this act on 41 its effective date.