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BILL NUMBER:S2369

TITLE OF BILL: An act to amend the environmental conservation law, in relation to the use of ultra low sulfur diesel fuel and best available technology by the state

PURPOSE: The purpose of the legislation is to extend the period of compliance for retrofitting heavy-duty diesel vehicles pursuant to the Diesel Emissions Reduction Act of 2006 (DERA).

SUMMARY OF PROVISIONS: The legislation amends section 19-0323 of the environmental conservation law to extend the time period by which all heavy-duty diesel vehicles must be retrofitted with diesel particulate filter devices, from December 31, 2010 to December 31, 2016. The legislation also provides a complete exemption for all vehicles that are within five years of their useful life.

EXISTING LAW: Current law requires all heavy-duty diesel vehicles to be retrofitted with diesel particulate filter devices by December 31, 2010.DEC recently issued a stay on enforcement of these regulations during the pendency of a court case challenging the regulation (Matter of New York Construction Materials Association, Inc. v. New York State Department of Environmental Conservation, et als).

JUSTIFICATION: The Diesel Emissions Reduction Act (DERA) applies to all heavy-duty diesel vehicles owned by state agencies or public authorities, as well as to contractors, subcontractors and material suppliers who do work on public job sites pursuant to contracts with state agencies or public authorities. Along with requiring the use of ultra low sulfur diesel fuel, DERA requires all applicable heavy-duty diesel vehicles to be retrofitted with diesel particulate devices to reduce the emissions of sulfur dioxide, nitrogen oxides and other pollutants by December 31, 2010.

While reducing the emissions of various pollutants is certainly a worthy goal, the best available technology for retrofitting heavy-duty diesel vehicles has proven to be cost-prohibitive for many businesses in New York State, running as high as $25,000 to $30,000 per truck. These hefty costs will present many challenges for businesses in the state, that are already struggling with ever-increasing costs associated with taxes, insurance and workers' compensation premiums, energy and fuel, along with other production costs. Many businesses will simply be unable to make such a sizeable investment and may be forced to close their doors. Extending the period of compliance for an extra five years will give affected businesses the opportunity to better plan for the increased costs. In addition, the cost of retrofitting will exceed the value of certain vehicles in company fleets.

 LEGISLATIVE HISTORY: S.7095 of 2010.

FISCAL IMPLICATIONS: The bill would likely result in significant savings to the state.

EFFECTIVE DATE: Immediately.

Text

STATE OF NEW YORK
________________________________________________________________________

2369

2011-2012 Regular Sessions

IN SENATE

January 19, 2011
___________

Introduced by Sens. SEWARD, LARKIN, MAZIARZ, RANZENHOFER, SALAND -- 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  the
  use  of  ultra low sulfur diesel fuel and best available technology by
  the state

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section 19-0323 of the environmental conservation law, as
added by chapter 629 of the laws of 2006, subdivision  5  as  added  and
subdivisions  6, 7 and 8 as renumbered by section 1 of part C of chapter
59 of the laws of 2010, is amended to read as follows:
S 19-0323. Use of ultra low sulfur diesel fuel and best available  tech-
             nology by the state.
  1. As used in this section, the terms:
  a.  "Ultra  low  sulfur  diesel  fuel" means diesel fuel having sulfur
content of 0.0015 per cent of sulfur or less.
  b. "Heavy duty vehicle" or "vehicle" means any on and off-road vehicle
powered by diesel fuel and having a gross vehicle weight of greater than
8,500 pounds, except that those vehicles defined in section 101  of  the
vehicle  and traffic law, paragraph 2 of schedule E and paragraph (a) of
schedule F of subdivision 7 of section 401 of  such  law,  and  vehicles
specified  in  subdivision  13 of section 401 of such law, and farm type
tractors and all terrain type vehicles used exclusively for agricultural
or mowing purposes, or for snow  plowing,  other  than  for  hire,  farm
equipment,  including  self-propelled machines used exclusively in grow-
ing, harvesting or handling farm produce, and self-propelled caterpillar
or crawler-type equipment while being operated on the contract site, and
timber harvesting equipment such as harvesters, wood chippers,  forward-
ers,  log  skidders, and other processing equipment used exclusively off
highway for timber harvesting and logging purposes, shall not be  deemed

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05844-01-1
S. 2369                             2

heavy  duty  vehicles for purposes of this section.  This term shall not
include vehicles that are specially equipped for emergency  response  by
the  department, office of emergency management, sheriff's office of the
department of finance, police department or fire department.
  c.  "Best available retrofit technology" means technology, verified by
the United States environmental protection agency for reducing the emis-
sion of pollutants that achieves reductions in particulate matter  emis-
sions  at  the  highest classification level for diesel emission control
strategies that is applicable to the particular engine and  application.
Such  technology  shall also, at a reasonable cost, achieve the greatest
reduction in emissions of nitrogen oxides  at  such  particulate  matter
reduction  level  and  shall in no event result in a net increase in the
emissions of either particulate matter or nitrogen oxides.
  d. "Reasonable cost" means that such technology does not cost  greater
than  30 percent more than other technology applicable to the particular
engine and application that falls within the same  classification  level
for  diesel  emission control strategies, as set forth in paragraph c of
this subdivision, when considering the cost  of  the  strategies,  them-
selves, and the cost of installation.
  E.  "USEFUL  LIFE"  MEANS  THE PERIOD OF PROBABLE USEFULNESS FOR WHICH
INDEBTEDNESS WAS INCURRED FOR A VEHICLE  AS  ESTABLISHED  IN  APPLICABLE
STATE  FINANCE  LAW  OR  LOCAL  FINANCE LAW, REFLECTED IN THE PERIOD FOR
WHICH INDEBTEDNESS WAS INCURRED BY THE OWNER OF THE VEHICLE.
  2. Any diesel powered heavy duty vehicle that is owned by, operated by
or on behalf of, or leased by a state  agency  and  state  and  regional
public authority shall be powered by ultra low sulfur diesel fuel.
  3. Any diesel powered heavy duty vehicle that is owned by, operated by
or  on  behalf  of,  or  leased by a state agency and state and regional
public authority with more than half of its governing body appointed  by
the  governor  shall  utilize the best available retrofit technology for
reducing the emission of pollutants. The commissioner  shall  promulgate
regulations for the implementation of this subdivision specifying proce-
dures for compliance according to the following schedule:
  a. Not less than 33% of the vehicles covered by this subdivision shall
have best available retrofit technology on or before December 31, 2008.
  b. Not less than 66% of the vehicles covered by this subdivision shall
have best available retrofit technology on or before December 31, 2009.
  c.  [All]  THE REMAINDER OF vehicles covered by this subdivision shall
have best available retrofit technology on or before December 31, 2010 ;
PROVIDED THAT SUCH VEHICLES ARE NOT WITHIN FIVE  YEARS  OF  THE  END  OF
THEIR  USEFUL  LIFE  AND SHALL CEASE TO BE OPERATED UPON THE END OF SUCH
USEFUL LIFE. PROVIDED FURTHER THAT ALL VEHICLES COVERED BY THIS SUBDIVI-
SION SHALL HAVE BEST AVAILABLE RETROFIT TECHNOLOGY ON OR BEFORE DECEMBER
31, 2016.
  This subdivision shall not apply to any vehicle subject to a lease  or
public  works  contract  entered  into or renewed prior to the effective
date of this section.
  4. In addition to other provisions for regulations  in  this  section,
the commissioner shall promulgate regulations as necessary and appropri-
ate to carry out the provisions of this act including but not limited to
provision  for waivers upon written finding by the commissioner that (a)
best available retrofit technology for reducing the emissions of  pollu-
tants  as required by subdivision 3 of this section is not available for
a particular vehicle or class of vehicles and (b) that ultra low  sulfur
diesel fuel is not available.
S. 2369                             3

  5.  In addition to any waiver which may be issued pursuant to subdivi-
sion four of this section, the department shall  issue  a  waiver  to  a
state  agency, a state or regional public authority, or a person operat-
ing any diesel-powered heavy duty vehicle on behalf of a  state  agency,
state  or regional public authority, upon a request in a form acceptable
to the department for a waiver from the provisions of subdivision  three
of  this  section for a vehicle engine provided that such vehicle engine
will cease to be used in the state on or before  December  thirty-first,
two  thousand  thirteen.  Any waiver issued pursuant to this subdivision
shall expire when a state agency, a state or regional public  authority,
or a person operating any diesel-powered heavy duty vehicle on behalf of
a  state  agency,  state  or regional public authority ceases to use the
engine in the state but not later than December thirty-first, two  thou-
sand thirteen.
  6. This section shall not apply where federal law or funding precludes
the state from imposing the requirements of this section.
  7. On or before January 1, 2008 and every year thereafter, the commis-
sioner  shall report to the governor and legislature on the use of ultra
low sulfur diesel fuel and the use of the best available retrofit  tech-
nology as required under this section. The information contained in this
report  shall  include, but not be limited to, for each state agency and
public authority covered by this section: (a) the total number of diesel
fuel-powered motor vehicles owned or operated by such agency and author-
ity; (b) the number of such motor vehicles that were  powered  by  ultra
low  sulfur  diesel  fuel;  (c)  the total number of diesel fuel-powered
motor vehicles owned or operated by such agency and authority  having  a
gross vehicle weight rating of more than 8,500 pounds; (d) the number of
such  motor vehicles that utilized the best available retrofit technolo-
gy, including a breakdown by motor vehicle model, engine  year  and  the
type  of  technology used for each vehicle; (e) the number of such motor
vehicles that are equipped with an engine certified  to  the  applicable
2007 United States environmental protection agency standard for particu-
late matter as set forth in section 86.007-11 of title 40 of the code of
federal  regulations  or  to  any subsequent United States environmental
protection agency standard for particulate matter that is  at  least  as
stringent; and (f) all waivers, findings, and renewals of such findings,
which,  for each waiver, shall include, but not be limited to, the quan-
tity of diesel fuel needed to power diesel fuel-powered  motor  vehicles
owned  or  operated  by  such agency and authority; specific information
concerning the availability of ultra low sulfur diesel fuel.
  8. The department shall, to the extent  practicable,  coordinate  with
regions  which  have  proposed or adopted heavy duty emission inspection
programs to promote regional consistency in such programs.
  S 2. This act shall take effect immediately.