§ 27-05 Selection Process.

   (a)   For each solid waste or recyclable materials contract that specifies that all diesel fuel-powered motor vehicles and diesel fuel-powered nonroad vehicles used in the performance of such contract that operate primarily within the city of New York shall utilize BART, the contractor operating such vehicle must identify, in list form, all types of pollution control technology devices verified for such vehicle at classification Level 4.

   (b)   All types of pollution control technology devices identified by the contractor as classification Level 4 devices that are not technologically feasible for use with respect to the particular vehicle, engine or application are to be eliminated from such list. To eliminate all types of pollution control technology devices identified by the contractor at classification Level 4, or a specific type of pollution control technology, or a particular pollution control technology device, the contractor must demonstrate to the satisfaction of the Commissioner that operational constraints or physical, chemical or engineering principles preclude the successful and effective use of the vehicle when used with such types of technology devices, or type of technology, or particular pollution control technology device.

   (c)   If, after the elimination process, no pollution control technology devices remain in classification Level 4 from which the contractor can select a BART, the same identification and elimination process must be done for classification Level 3. If, after the elimination process, no pollution control technology devices remain in classification Level 3 from which the contractor can select a BART, the same identification and elimination process must be done for classification Level 2. If, after the elimination process, no pollution control technology devices remain in classification Level 2 from which the contractor can select a BART, the same identification and elimination process must be done for classification Level 1.

   (d)   Once a level is selected as provided for in subdivisions (a), (b), and (c) of this section, an economic impact analysis is to be performed on the remaining technologies where the technology reduces both PM and nitrogen oxide (NOx). The contractor shall select the technology achieving, at a reasonable cost, the greatest reduction in NOx emissions. If the NOx emission does not meet the reasonable cost test, the technology that achieves the greatest PM reduction from the other remaining technologies must be selected.

§ 27-06 Best Available Retrofit Technology Selection Applicability.

No contractor shall be required to replace a selected BART within three years of having first utilized such technology. Furthermore, no contractor shall be required to replace Level 4 technology until it has reached the end of its useful life.

§ 27-07 Use of Ultra Low Sulfur Diesel Fuel.

All solid waste or recyclable materials contracts shall specify that diesel fuel-powered motor vehicles and diesel fuel-powered nonroad vehicles used in the performance of such contracts that operate primarily in the City of New York shall be powered by ultra low sulfur diesel fuel ("ULSDF").

Subchapter C: Waiver Procedures

§ 27-08 Application for Approval of a Written Finding of Unavailability for ULSDF.

   (a)   Once the solid waste contract or recyclable materials contract has been entered into, the Commissioner may issue a waiver for the use of ULSDF where the city agency that has entered into the contract makes a written finding that a sufficient quantity of ULSDF is unavailable. Any application for approval of a Written Finding of Unavailability for the ULSDF must contain the following information:

      (1)   The name of the contractor applying for approval of the Written Finding of Unavailability;

      (2)   The name and identification number of the subject contract;

      (3)   Identification of the specific diesel-fuel powered vehicle or diesel fuel-powered nonroad vehicle that is the subject of the Written Finding of Unavailability;

      (4)   An explanation as to why the ULSDF is unavailable.

   (b)   Applications should be sent to:

      Director of the Division of Air and Noise Programs, Enforcement and Policy
      Bureau of Environmental Compliance
      New York City Department of Environmental Protection
      59-17 Junction Blvd.
      Flushing, NY 11373

   (c)   The Department will make a determination whether to approve the Written Finding of Unavailability no later than thirty days after receipt of the Written Finding.

   (d)   Waivers shall expire two months after issuance, unless the agency renews the Written Finding and the Commissioner approves such Finding, in accordance with the procedures set forth in subdivisions (a), (b) and (c) of this section. Any such application for renewal shall be submitted no later than thirty days prior to the expiration date of the approval.

§ 27-09 Application for Approval of a Written Finding of Unavailability for BART.

   (a)   If the BART required for a diesel fuel-powered motor vehicle or diesel fuel-powered nonroad vehicle that is subject to a solid waste contract or recyclable materials contract with a city agency is unavailable, and the city agency that has entered into the applicable contract has made a written finding that such technology is unavailable, the city agency may submit a Written Finding of Unavailability for the Commissioner's approval. Any application for approval of a Written Finding of Unavailability for the BART must contain the following information:

      (1)   The name of the contractor applying for approval of the Written Finding of Unavailability;

      (2)   The name and identification number of the subject contract;

      (3)   Identification of the specific diesel-fuel powered vehicle or diesel fuel-powered nonroad vehicle that is the subject of the Written Finding of Unavailability;

      (4)   Identification of the required BART;

      (5)   An explanation as to why the BART is unavailable. Such explanation must include all documentation generated in the BART selection process described in this chapter;

      (6)   Identification of a technology for reducing the emission of pollutants, if any, that is available and appropriate for such vehicle, which may include a technology that does not appear on the EPA or CARB verified lists, and that, if available and appropriate, will be used instead of the BART.

      (7)   The name and contact number of the applicant.

   (b)   Applications should be sent to:

      Director of the Division of Air and Noise Programs, Enforcement and Policy
      Bureau of Environmental Compliance
      New York City Department of Environmental Protection
      59-17 Junction Blvd.
      Flushing, NY 11373
      or by email to [e-mail]

   (c)   The Department will make a determination whether to approve the Written Finding of Unavailability no later than thirty days after receipt of the Written Finding.

   (d)   Waivers shall expire three years after issuance, unless the agency renews the Written Finding and the Commissioner approves such Finding, in accordance with the procedures set forth in subdivisions (a), (b) and (c) of this section. Any such application for renewal shall be submitted no later than thirty days prior to the expiration date of the approval.

(Amended City Record 3/15/2017, eff. 4/14/2017)