Sec. 248-4.1. Waiver Provisions

(a) Application for waiver of ULSD requirements.

(1) Regulated entities and contractors may apply for a waiver from the ULSD requirements of this Part. All waiver applications submitted to the department shall be provided in a format acceptable to the department. The name and contact phone number of the waiver applicant shall be provided on the waiver application. Upon application, the commissioner may issue a waiver from the ULSD requirements of section 248-3.1(d) of this Part to a regulated entity or contractor for diesel fuel which contains greater than 15 ppm sulfur upon a showing that ULSD is not readily available to meet the requirements of section 248-3.1(d) of this Part provided that the regulated entity or contractor shall to the extent practicable use whatever quantity of ULSD is available. Upon application, the commissioner, after consultation with the president of the New York State Energy Research and Development Authority, may grant a waiver from the requirements of section 248-3.1(d) of this Part if the applicant for such waiver can demonstrate to the commissioner that quantities of ULSD sufficient to meet the applicant's demand are not available in time to meet the requirements of section 248-3.1(d) of this Part. Such waiver may be issued for up to one year, at the discretion of the commissioner, and may be renewed upon application. Such waiver determination shall be made on a case by case basis upon written application to the department by the State agency commissioner or other responsible person of the regulated entity or contractor. The commissioner may impose an interim standard for sulfur in diesel fuel permitted to be used as a condition of a waiver issued pursuant to this subdivision.

(b) Application for waiver of BART requirements.

(1) Regulated entities and contractors may apply for a waiver from the BART requirements of this Part. All waiver applications submitted to the department shall be provided in a format acceptable to the department. Such application shall be submitted by the State agency commissioner or other responsible person of the regulated entity or contractor. If, through the BART evaluation and selection process noted in section 248-3.1(f)(2) of this Part, it is determined by the BART regulated entity or contractor that none of the PM reduction classification level technologies are applicable or available for a specific covered vehicle, such BART regulated entity or contractor may submit an application for a waiver for the commissioner's approval. A copy of the department’s approval of a vehicle waiver shall be kept with the vehicle and provided to the department upon request. Any application for a waiver of BART requirements shall contain the following information:

(i) the name and address of the BART regulated entity or contractor applying for approval of the waiver including the name and phone number of the responsible party;

(ii) the name and identification number of the subject contract, if applicable;

(iii) identification of the specific heavy duty covered vehicle or engine that is the subject of the waiver application;

(iv) the name of the engine manufacturer, engine model year, engine family, and engine series;

(v) VIN, if applicable;

(vi) identification of the required BART; and

(vii) an explanation as to why the BART is not available or not applicable. Such explanation shall include all documentation generated in the BART evaluation and selection process described in section 248-3.1(f)(2) of this Part.

(c) Heavy duty vehicle/engine useful life waiver.

(1) The department shall issue a waiver of the requirements of this Part to a BART regulated entity or contractor upon receipt of request from such entity or contractor provided that such vehicle will be permanently taken out of service in New York State on or before December 31, 2020. The waiver form will be prescribed by the department. A copy of a department issued waiver for a vehicle shall be kept with the vehicle and provided to the department upon request.

(d) Applications and form shall be sent to:

Director, Bureau of Mobile Sources & Technology Development, Division of Air Resources, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-3255.

(e) The commissioner will make a determination whether to approve the waiver of BART or ULSD requirements no later than 90 days after receipt of the application.

(f) Waivers issued by the department pursuant to subdivisions (a) and (b) of this section shall expire one year after issuance, unless the BART or ULSD regulated entity or contractor submits a renewal application and the commissioner approves such application, in accordance with the provisions set forth in this subdivision. Any such application for renewal shall be submitted no later than 30 days prior to the expiration date of the approval.