June 18, 2004

Notice of Opportunity to Comment on Promulgation of Chapter 14 of Title 15 of the Rules of the City of New York Rules Concerning the Use of Ultra-Low Sulfur Fuel and Emissions Control Technology in Non-Road Vehicles Used in City Construction

PUBLIC NOTICE IS HEREBY GIVEN PURSUANT TO THE AUTHORITY VESTED IN THE Department of Environmental Protection by section 1043 and subdivision (c) of section 1403 of the New York City Charter and section 24-163.3 of the Administrative Code of the City of New York that the Department of Environmental Protection is proposing to promulgate rules concerning the use of ultra-low sulfur fuel and emissions control technology in non-road vehicles.

PLEASE BE ADVISED THAT WRITTEN COMMENTS regarding the proposed Rule may be sent on or before July 12, 2004 to the New York City Department of Environmental Protection, Office of Legal and Legislative Affairs, 59-17 Junction Boulevard, 19th floor, Flushing, New York 11373 Attention: Judah Prero, Esq.

PLEASE BE FURTHER ADVISED THAT ORAL COMMENTS regarding the proposed Rule may be delivered at a public hearing to be held on July 12, 2004 at 59-17 Junction Boulevard, 6th Floor, Flushing, NY 11373 from 10am to 12 Noon. If you have any questions about the location of the hearing, please contact Belinda Pantina at (718) 595-6555.

Persons who request that a sign language interpreter or other form of reasonable accommodation for a disability be provided at the hearing are asked to notify Belinda Pantina at the phone number above by two weeks prior to the hearing.

PLEASE BE FURTHER ADVISED THAT COPIES OF ALL WRITTEN COMMENTS and a summary of the oral comments delivered at the public hearing will be available for inspection within a reasonable time after receipt between the hours of 9:00 a.m. and 5:00 p.m. at the Department of Environmental Protection, Office of Legal Affairs, 59-17 Junction Boulevard, 19th floor, Flushing, New York 11373.

The proposed Rule was listed in the Department’s FY ‘04 Regulatory Agenda.

Please note that as the entire rule is new, the text is neither underlined nor [bracketed].

Statement of Basis and Purpose

On December 22, 2003, Mayor Michael Bloomberg signed into law Local Law 77 of the year 2003. The law amended the Administrative Code of the City of New York in relation to the use of ultra low sulfur fuel (“ULSF”) and the best available technology (“BAT”) by non-road vehicles in city construction. The law requires that any diesel powered non-road vehicle, fifty horsepower and greater, that is owned, or operated by or on behalf of, or leased by a City agency be powered by ULSF and utilize BAT for reducing the emission of pollutants. All City contractors, therefore, must make use of ULSF and BAT. The law provides that the commissioner of the Department of Environmental Protection shall make determinations, and shall publish a list of such determinations, as to the BAT for reducing the emission of pollutants to be used for each type of diesel powered non-road vehicle affected by the law. The BAT was chosen by relying on technology verified by either the United States Environmental Protection Agency (EPA) and/or California Air Resources Board (CARB) that is designed to reduce the emission of particulate matter as well as nitrogen oxides.

This rulemaking sets forth the initial determinations of the Commissioner as to what constitutes BAT for the purposes of compliance with 24-163.3 of the Administrative Code.

The Rules are authorized by section 1403 of the Charter of the City of New York and sections 24-163.3 of the Administrative Code of the City of New York.

* * *

Chapter 14 of Title 15 of the Rules of the City of New York is enacted to read as follows:

Chapter 14
Rules Concerning the Use of Ultra-Low Sulfur Fuel and Emissions Control Technology in Non-Road Vehicles Used in City Construction

Subchapter

A General Provisions
B Best Available Technology

Subchapter A
General Provisions

§ 14-01 Definitions

Code shall mean the Administrative Code of the City of New York

Non-road engine shall mean an internal combustion engine (including the fuel system) that is not used in a motor vehicle or a vehicle used solely for competition, or that is not subject to standards promulgated under section 7411 or section 7521 of title 42 of the United States code, except that this term shall apply to internal combustion engines used to power generators, compressors or similar equipment used in any construction program or project.

Non-road vehicle shall mean a vehicle powered by a non-road engine, fifty horsepower and greater, and that is not a motor vehicle or a vehicle used solely for competition, which shall include, but not be limited to, excavators, backhoes, cranes, compressors, generators, bulldozers, and similar equipment, except that this term shall not apply to horticultural maintenance vehicles used for landscaping purposes that are powered by a non-road engine of sixty-five horsepower or less and that are not used in any construction program or project.

Subchapter B
Best Available Technology

§14-02 Specific Determination. For purposes of complying with §24-163.3 of the Code, the Best Available Technology that must be utilized for a Caterpillar 966L Wheel Loader is a diesel particulate filter approved by Caterpillar and the consistent use of ultra low sulfur fuel unless Caterpillar’s recommended operating conditions will not be achieved by this equipment as a result of how it will be used by the agency or in a specific contract.

§ 14-03 General Determinations. For all other non-road engines, the following are determinations of what constitutes Best Available Technology for such engines:

1. Non-road vehicles powered by non-road engines rated fifty (50) to two hundred (200) horsepower (hp). For purposes of complying with §24-163.3 of the Code, the Best Available Technology that must be utilized for non-road vehicles powered by non-road engines rated fifty (50) to two hundred (200) horsepower is PuriNOx, a fuel blend manufactured by Lubrizol, or its functional equivalent
2. Non-road vehicles powered by non-road engines rated above two hundred (200) horsepower. For purposes of complying with §24-163.3 of the Code, the Best Available Technology that must be utilized for non-road vehicles powered by non-road engines rated above two hundred (200) horsepower is the Platinum Plus Purification System, manufactured by Clean Diesel Technologies, or its functional equivalent. The Platinum Plus Purification System must be operated on the subject non-road vehicles with a properly installed and functioning diesel oxidization catalyst, manufactured by Clean Diesel Technologies, or a functional equivalent.

§14-04 Alternate Determinations.

1. For non-road vehicles in any of the categories listed in this subchapter that are technologically incompatible with the determined Best Available Technology, the Best Available Technology, for purposes of complying with §24-163.3, is use of a properly installed and functioning diesel oxidization catalyst.
2. For non-road vehicles in any of the categories listed in this chapter for which a diesel particulate filter has been designed but not yet EPA or CARB verified for the subject engine family, the use of ultra low sulfur fuel with a properly installed and functioning diesel particulate filter and the use of data collection equipment shall constitute Best Available Technology for purposes of complying with §24-163.3.