Home » 2009 Issues » July 15, 2009 » ENV-41-08-00016-A To Implement the Requirements for the Use of Ultra Low Sulfur Diesel Fuel and Best Available Retrofit Technology
ENV-41-08-00016-A To Implement the Requirements for the Use of Ultra Low Sulfur Diesel Fuel and Best Available Retrofit Technology
7/15/09 N.Y. St. Reg. ENV-41-08-00016-A
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 28
July 15, 2009
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF ADOPTION
I.D No. ENV-41-08-00016-A
Filing No. 752
Filing Date. Jun. 30, 2009
Effective Date. s , 30 d
To Implement the Requirements for the Use of Ultra Low Sulfur Diesel Fuel and Best Available Retrofit Technology
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 200 and addition of Part 248 to Title 6 NYCRR.
To implement the requirements for the use of ultra low sulfur diesel fuel and best available retrofit technology.
Purpose:
The primary purpose of the proposed new Part 248 is to address the public health threat posed by the combustion of diesel fuel.
Text or summary was published
in the October 8, 2008 issue of the Register, I.D. No. ENV-41-08-00016-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Joseph Iannotti, P.E., NYSDEC, Division of Air Resources, 625 Broadway, Albany, NY 12233-3255, (518) 402-8292, email: airregs@gw.dec.state.ny.us
Additional matter required by statute:
Pursuant to Article 8 of the State Environmental Quality Review Act, a Short Environmental Assessment Form, a Negative Declaration and a Coastal Assessment Form have been prepared and are on file. This rule was approved by the Environmental Board.
Assessment of Public Comment
Comments received from October 8, 2008 through 5:00 P.M., December 4, 2008
The New York State Department of Environmental Conservation (Department) is proposing to establish 6 NYCRR Part 248, Use of Ultra Low Sulfur Diesel Fuel and Best Available Retrofit Technology for Heavy Duty Vehicles, which is designed to implement the requirements of the Diesel Emissions Reduction Act of 2006 (DERA). The purpose of DERA and Part 248 is to address the public health threat posed by the combustion of diesel fuel in certain heavy duty vehicles (HDVs).
The Department proposed Part 248 on October 8, 2008. Public hearings were held during the week of November 24, 2008 in Albany, Avon, and Long Island City, New York, and the public comment period closed at 5:00 P.M. on December 4, 2008. The Department received written and oral comments from 385 commentors on the proposed regulation. All of these comments have been reviewed, summarized, and responded to by the Department.
The purpose of this summary document is to identify and summarize major concerns from commentors and the Department's response as described below.
Commentors in support of the regulation included those associated with various environmental groups/associations and retrofit device substrate manufacturers. Some commentors strongly supported implementation of the regulation, and identified significant adverse impact to human health associated with exposure to diesel exhaust from older HDVs. Commentors identified specific health issues associated with diesel particulate matter, as well as suggesting public health costs associated with these health effects. Several commentors noted that retrofitting HDVs with after treatment devices per the regulatory requirements will reduce diesel exhaust particulate matter (PM) and its associated health threat from those vehicles. Further, some commentors noted that the retrofit devices already exist and that the implementation of the retrofit requirements is timely. The benefit from retrofitting vehicles as compared to the health expense to treat asthma attacks which may be attributed to diesel exhaust exposure were also discussed by several commentors. Other commentors suggested that the benefits of retrofits have not been clearly demonstrated, or that retrofits will not have a demonstrable effect on air quality. The Department expresses general agreement that air quality and public health benefit from reduced diesel emissions, and referred to the discussion of health impact in the Regulatory Impact Statement.
Commentors opposed to the regulation in general, or to specific regulatory requirements, included various contractors, contractor associations, public transit authorities and State agencies and authorities. Several commentors noted that there is a significant cost impact associated with retrofitting HDVs, and that the impact is particularly pronounced with small businesses or subcontractors with affected HDVs. The commentors indicate that some of those entities may elect to not bid on state contracts. It was commented that bid prices on state contract work may increase in order to cover the cost of retrofitting contractor/subcontractor HDVs. Also, some commentors noted that the regulatory definition of "contractor" was too broad and should not include subcontractors such as those with HDVs delivering materials to state contract sites, or that there should be specific contract dollar limits below which the regulation do not apply, or that the regulations should not apply to subcontractors at all. The Department responded by acknowledging that contractors may elect not to bid on state contract work due to the retrofit requirement but that those contractors who retrofit their HDVs may have an advantageous bidding position over those who have not retrofit their HDVs on future state contract work. The Department also indicated that contractors might be expected to increase bid costs in order to recover the cost of compliance of retrofitting. In response to comments concerning the inclusion of subcontractors, the Department believes that DERA requires all vehicles, including subcontractors' vehicles, operated "on behalf of" state agencies and authorities to comply with the regulatory requirements.
A number of comments were received indicating extensive cost and technical issues associated with retrofit of heavy duty diesel vehicles. These comments suggest high costs for some equipment, technical difficulty with fitting retrofit equipment onto vehicles, safety concerns associated with some retrofit devices, and concerns about the functionality of vehicles and equipment after retrofit. The Department responded to these comments by further discussing the process to determine that a retrofit is applicable to a specific application, and that the retrofit will not inhibit the functionality of a vehicle if that retrofit has been properly selected for the vehicle and its use, by a competent service provider. The Department also reminded commentors that the regulations specifically exempt a large portion of non-road equipment. Also, the regulation provides that only those retrofit devices which have undergone verification by the United States Environmental Protection Agency (US EPA) or California Air Resources Board (CARB) can be used, and that this verification process considers the technical demands and limitations associated with the specific use of the vehicle. The Department acknowledges that the cost to retrofit vehicles may be significant; these costs are identified in the Regulatory Impact Statement, but DERA does not provide for a consideration of the cost impacts of the regulation, except as it relates to the addition of NOx control in the retrofit technology assessment process.
Commentors indicated that the regulatory timeframe to install the retrofits and demonstrate compliance was unreasonable. These comments also suggested that the phase in period be extended, or that compliance for vehicles within five years of retirement be excluded from consideration. The Department responded that the compliance schedule is stated in DERA and therefore can not be revised in regulation. The Department also reiterated that the DERA was signed in to law in August 2006, thereby giving regulated entities adequate time to evaluate their fleets, and develop and implement a compliance strategy.
Several comments were received related to the relationship between contractors and subcontractors, and state agencies and contractors. These comments focused on the mechanism for an agency to use to require compliance by a contractor, as well as the mechanism for a contractor to require compliance by a subcontractor. Similar concerns were identified for reporting. Comments were also received questioning the enforcement mechanism, particularly among contractors and subcontractors, and the Department's authority to enforce against contractors and subcontractors. The Department responded by indicating its expectation that state agencies will require contractor compliance through language in the contracts, and in bidding documents. The Department expects that similar provisions will be included in agreements between contractors and their subcontractors. The Department reaffirmed its authority to enforce the regulations against any and all entities subject to the regulatory requirements.
Several commentors requested clarification on various aspects of the regulation including specific HDVs affected by the regulation, applicability of the regulation, regulatory definitions, enforcement, and waiver provisions. Those commentors included mostly contractor affiliated entities or state agency/public authority entities. The Department responded to those requested clarifications which included specific references to the regulatory definitions of "HDV" (which exempts most off road construction vehicles) and "contractor". Also, the Department noted that enforcement of the regulation will be performed by the Department against any entities subject to the regulation. The Department also noted that compliance monitoring of contractors will be conducted by the contracting agency. The Department further responded that if the retrofit option is selected for affected HDVs, only those HDVs determined to have no applicable verified retrofit technologies are eligible for a waiver determination by the Department.
Some state agencies and authorities commented that state budget issues and state procurement requirements may limit their ability to comply with the regulatory requirements. Agencies commented that some small contractors may be reluctant to retrofit vehicles that are used under contract. Agencies also echoed or otherwise supported comments of contractors related to various technical issues identified, and concern over reporting requirements. The Department indicated in the response that the state agencies and authorities are obligated under DERA to accomplish retrofits, and to ensure compliance by their contractors. The Department expects that contract costs may increase as contractors seek to recover their investment in retrofit technology. DERA requires the Department to report annually on program success. The Department will seek and require reporting through the state agencies, since it is those agencies which have a contractual relationship with their contractors. Technical issues must be identified within the evaluation of applicable technology for each and every vehicle subject to the regulations.
Comments from all commentors and the Department's response to those comments can be found in the Department's "Assessment of Public Comments" document.
