Section 24-163.3. Use of ultra low sulfur diesel fuel and best available technology in nonroad vehicles

a. For purposes of  this  section  only,  the following terms shall have the following meanings:
    (1)  "City  agency"  means  a  city,  county, borough, administration,
  department, division, bureau, board or  commission,  or  a  corporation,
  institution  or  agency of government, the expenses of which are paid in
  whole or in part from the city treasury.
    (2) "Contractor" means any person or entity that enters into a  public
  works  contract  with a city agency, or any person or entity that enters
  into an agreement with such person or entity, to perform work or provide
  labor or services related to such public works contract.
    (3) "Lower Manhattan" means the area of New York county consisting  of
  the area to the south of and within Fourteenth street.
    (4)  "Motor  vehicle"  means  any  self-propelled vehicle designed for
  transporting persons or property on a street or highway.
    (5) "Nonroad engine" means 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.
    (6) "Nonroad vehicle" means a vehicle that is  powered  by  a  nonroad
  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 nonroad engine of sixty-five  horsepower  or  less  and
  that are not used in any construction program or project.
    (7)  "Person" means any natural person, co-partnership, firm, company,
  association,  joint  stock  association,  corporation  or   other   like
  organization.
    (8)  "Public works contract" means a contract with a city agency for a
  construction program or project involving the construction,  demolition,
  restoration,  rehabilitation,  repair,  renovation,  or abatement of any
  building, structure, tunnel, excavation,  roadway,  park  or  bridge;  a
  contract  with  a  city  agency for the preparation for any construction
  program or project involving the construction, demolition,  restoration,
  rehabilitation,  repair,  renovation,  or  abatement  of  any  building,
  structure, tunnel, excavation, roadway, park or bridge;  or  a  contract
  with  a city agency for any final work involved in the completion of any
  construction program or project involving the construction,  demolition,
  restoration,  rehabilitation,  repair,  renovation,  or abatement of any
  building, structure, tunnel, excavation, roadway, park or bridge.
    (9) "Ultra low sulfur diesel fuel" means diesel fuel that has a sulfur
  content of no more than fifteen parts per million.
    b. (1) Any diesel-powered nonroad vehicle that is owned  by,  operated
  by or on behalf of, or leased by a city agency shall be powered by ultra
  low sulfur diesel fuel.
    (2)  Any  diesel-powered nonroad vehicle that is owned by, operated by
  or on behalf of, or leased by a  city  agency  shall  utilize  the  best
  available technology for reducing the emission of pollutants.
    c.  (1)  Any solicitation for a public works contract and any contract
  entered  into  as  a  result  of  such  solicitation  shall  include   a
  specification  that  all contractors in the performance of such contract
  shall use  ultra  low  sulfur  diesel  fuel  in  diesel-powered  nonroad

  vehicles  and  all contractors in the performance of such contract shall
  comply with such specification.
    (2)  Any  solicitation  for  a  public works contract and any contract
  entered  into  as  a  result  of  such  solicitation  shall  include   a
  specification  that  all contractors in the performance of such contract
  shall utilize the best available technology for reducing the emission of
  pollutants for diesel-powered nonroad vehicles and  all  contractors  in
  the performance of such contract shall comply with such specification.
    d. (1) The commissioner shall make determinations, and shall publish a
  list containing such determinations, as to the best available technology
  for  reducing  the  emission  of  pollutants to be used for each type of
  diesel-powered nonroad vehicle to which this  section  applies  for  the
  purposes  of  paragraph  two  of  subdivision  b  and  paragraph  two of
  subdivision c of this section. Each such determination, which  shall  be
  updated  on  a  regular  basis, but in no event less than once every six
  months, shall be primarily based upon  the  reduction  in  emissions  of
  particulate matter and secondarily based upon the reduction in emissions
  of  nitrogen oxides associated with the use of such technology and shall
  in no event result in an  increase  in  the  emissions  of  either  such
  pollutant. In determining the best available technology for reducing the
  emission  of  pollutants,  the commissioner shall select technology from
  that  which  has  been  verified  by  the  United  States  environmental
  protection  agency  or  the  California  air  resources board for use in
  nonroad vehicles or onroad vehicles where such technology  may  also  be
  used  in  nonroad  vehicles,  but the commissioner may select technology
  that is not verified as such as is deemed appropriate.
    (2) No city agency or contractor shall be  required  to  replace  best
  available  technology  for  reducing the emission of pollutants or other
  authorized technology utilized for a diesel-powered nonroad  vehicle  in
  accordance  with  the  provisions  of this section within three years of
  having first utilized such technology for such vehicle.
    e. A city agency shall not enter into a public works contract  subject
  to   the  provisions  of  this  section  unless  such  contract  permits
  independent  monitoring  of  the  contractor's   compliance   with   the
  requirements  of  this  section  and requires that the contractor comply
  with section  24-163  of  this  code.  If  it  is  determined  that  the
  contractor  has failed to comply with any provision of this section, any
  costs associated with any independent monitoring incurred  by  the  city
  shall be reimbursed by the contractor.
    f.  (1) The provisions of subdivision b of this section shall apply to
  any diesel-powered nonroad vehicle in use in  Lower  Manhattan  that  is
  owned  by,  operated  by or on behalf of, or leased by a city agency and
  the provisions of subdivision c of  this  section  shall  apply  to  any
  public  works  contract  for  Lower Manhattan upon the effective date of
  this section.
    (2) The provisions of paragraph one of subdivision b of  this  section
  shall  apply  to  all diesel-powered nonroad vehicles that are owned by,
  operated by or on behalf  of,  or  leased  by  a  city  agency  and  the
  provisions of paragraph one of subdivision c of this section shall apply
  to  all  public  works  contracts six months after the effective date of
  this section.
    (3) The provisions of paragraph two of subdivision b of  this  section
  shall  apply  to  all diesel-powered nonroad vehicles that are owned by,
  operated by or on behalf  of,  or  leased  by  a  city  agency  and  the
  provisions of paragraph two of subdivision c of this section shall apply
  to  any  public  works contract that is valued at two million dollars or
  more one year after the effective date of this section.

    (4) The provisions of paragraph two of subdivision c of  this  section
  shall  apply  to  all  public  works contracts eighteen months after the
  effective date of this section.
    g.  (1)  On or before January 1, 2005, and every succeeding January 1,
  the commissioner shall report to the comptroller and the speaker of  the
  council  on  the  use  of ultra low sulfur diesel fuel in diesel-powered
  nonroad vehicles and the  use  of  the  best  available  technology  for
  reducing the emission of pollutants and such other authorized technology
  in  accordance  with  this  section  for  such vehicles by city agencies
  during  the  immediately  preceeding  fiscal  year.  This  report  shall
  include,  but  not  be limited to (i) the total number of diesel-powered
  nonroad vehicles owned by, operated by or on behalf  of,  or  leased  by
  each  city  agency or used to fulfill the requirements of a public works
  contract for each city agency; (ii) the number of such nonroad  vehicles
  that  were  powered by ultra low sulfur diesel fuel; (iii) the number of
  such nonroad vehicles that utilized the best  available  technology  for
  reducing  the  emission  of pollutants, including a breakdown by vehicle
  model and the type of technology used for each vehicle; (iv) the  number
  of  such nonroad vehicles that utilized such other authorized technology
  in accordance with this section, including a breakdown by vehicle  model
  and  the  type  of  technology  used for each vehicle; (v) the locations
  where such nonroad vehicles that were powered by ultra low sulfur diesel
  fuel and/or utilized the best  available  technology  for  reducing  the
  emission of pollutants or such other authorized technology in accordance
  with  this  section  were  used; (vi) all findings, and renewals of such
  findings, issued pursuant to subdivision j of this section, which  shall
  include,  but  not  be  limited  to,  for  each finding and renewal, the
  quantity of diesel fuel needed by the city agency or contractor to power
  diesel-powered nonroad vehicles owned by, operated by or on  behalf  of,
  or  leased  by  the city agency or used to fulfill the requirements of a
  public works contract for such agency; specific  information  concerning
  the availability of ultra low sulfur diesel fuel or diesel fuel that has
  a  sulfur  content  of  no  more  than  thirty parts per million where a
  determination is in effect pursuant to subdivision i  of  this  section;
  and  detailed  information  concerning the city agency's or contractor's
  efforts to obtain ultra low sulfur diesel fuel or diesel fuel that has a
  sulfur content of  no  more  than  thirty  parts  per  million  where  a
  determination  is  in  effect pursuant to subdivision i of this section;
  and (vii) all findings and waivers, and renewals of  such  findings  and
  waivers,  issued  pursuant  to  paragraph  one  or  paragraph  three  of
  subdivision k or subdivision m of this section, which shall include, but
  not be limited to, all specific information submitted by a  city  agency
  or  contractor  upon which such findings, waivers and renewals are based
  and the type of such other authorized technology, if  any,  utilized  in
  accordance  with  this  section  in relation to each finding, waiver and
  renewal, instead of the  best  available  technology  for  reducing  the
  emission of pollutants.
    (2)  Where  a  determination is in effect pursuant to subdivision i of
  this section, information  regarding  diesel  fuel  that  has  a  sulfur
  content  of  no  more  than  thirty  parts per million shall be reported
  wherever information is requested  for  ultra  low  sulfur  diesel  fuel
  pursuant to paragraph one of this subdivision.
    h. This section shall not apply:
    (1)  where  federal  or state funding precludes the city from imposing
  the requirements of this section; or
    (2) to purchases that are emergency procurements pursuant  to  section
  three hundred fifteen of the charter.

    i.  The  commissioner shall issue a written determination that permits
  the use of diesel fuel that has a sulfur content of no more than  thirty
  parts  per  million  to  fulfill  the  requirements  of paragraph one of
  subdivision b and paragraph one of subdivision  c  of  this  section  if
  ultra  low sulfur diesel fuel is not available to meet the needs of city
  agencies and contractors to fulfill the requirements  of  this  section.
  Such determination shall expire after six months and shall be renewed in
  writing  every  six  months  if  ultra  low  sulfur  diesel  fuel is not
  available to meet the needs of city agencies and contractors to  fulfill
  the  requirements  of  this  section, but in no event shall be in effect
  after September 1, 2006.
    j. Paragraph one of subdivision b and paragraph one of subdivision  c,
  as  that  paragraph  applies to all contractors' duty to comply with the
  specification, of this section shall not  apply  to  a  city  agency  or
  contractor  in  its  fulfillment  of  the requirements of a public works
  contract for such agency where such  agency  makes  a  written  finding,
  which  is  approved,  in writing, by the commissioner, that a sufficient
  quantity of ultra low sulfur diesel fuel, or  diesel  fuel  that  has  a
  sulfur  content  of  no  more  than  thirty  parts  per  million where a
  determination is in effect pursuant to subdivision i of this section, is
  not available to meet the requirements of paragraph one of subdivision b
  or paragraph one of subdivision c of this section,  provided  that  such
  agency  or contractor in its fulfillment of the requirements of a public
  works contract for such agency, to the  extent  practicable,  shall  use
  whatever  quantity  of  ultra low sulfur diesel fuel or diesel fuel that
  has a sulfur content of  no  more  than  thirty  parts  per  million  is
  available.  Any  finding  made pursuant to this subdivision shall expire
  after sixty days, at which time the requirements  of  paragraph  one  of
  subdivision  b  and paragraph one of subdivision c of this section shall
  be in full force and effect unless the city agency renews the finding in
  writing and such renewal is approved by the commissioner.
    k. Paragraph two of subdivision b and paragraph two of subdivision  c,
  as  that  paragraph  applies to all contractors' duty to comply with the
  specification, of this section shall not apply:
    (1) to a diesel-powered nonroad vehicle where a city  agency  makes  a
  written  finding,  which  is  approved, in writing, by the commissioner,
  that  the  best  available  technology  for  reducing  the  emission  of
  pollutants  as  required  by  those  paragraphs  is unavailable for such
  vehicle, in which case such agency  or  contractor  shall  use  whatever
  technology for reducing the emission of pollutants, if any, is available
  and appropriate for such vehicle; or
    (2)  to  a  diesel-powered nonroad vehicle that is used to satisfy the
  requirements of a specific public works contract for fewer  than  twenty
  calendar days; or
    (3)  to  a  diesel-powered  nonroad vehicle where the commissioner has
  issued a written waiver based upon a city agency  or  contractor  having
  demonstrated  to  the  commissioner  that  the use of the best available
  technology for reducing the emission of pollutants  might  endanger  the
  operator  of  such  vehicle  or  those working near such vehicle, due to
  engine malfunction, in which case such city agency or  contractor  shall
  use whatever technology for reducing the emission of pollutants, if any,
  is  available and appropriate for such vehicle, which would not endanger
  the operator of such vehicle or those working near such vehicle.
    l. In  determining  which  technology  to  use  for  the  purposes  of
  paragraph  one  or  paragraph  three of subdivision k of this section, a
  city agency or contractor shall  primarily  consider  the  reduction  in
  emissions  of  particulate matter and secondarily consider the reduction
  in emissions  of  nitrogen  oxides  associated  with  the  use  of  such

  technology,  which  shall  in  no  event  result  in  an increase in the
  emissions of either such pollutant.
    m.  Any  finding or waiver made or issued pursuant to paragraph one or
  paragraph three of subdivision k of this section shall expire after  one
  hundred  eighty days, at which time the requirements of paragraph two of
  subdivision b and paragraph two of subdivision c of this  section  shall
  be  in  full force and effect unless the city agency renews the finding,
  in writing, and the commissioner approves such finding, in  writing,  or
  the commissioner renews the waiver, in writing.
    n.  Any  contractor who violates any provision of this section, except
  as provided in subdivision o of this section,  shall  be  liable  for  a
  civil  penalty  between  the  amounts  of  one thousand and ten thousand
  dollars, in addition  to  twice  the  amount  of  money  saved  by  such
  contractor for failure to comply with this section.
    o.  No  contractor  shall  make  a  false  claim  with  respect to the
  provisions of this section to a city agency. Where a contractor has been
  found to have done so, such contractor  shall  be  liable  for  a  civil
  penalty  of  twenty thousand dollars, in addition to twice the amount of
  money saved by such contractor in  association  with  having  made  such
  false claim.
    p.  This  section shall not apply to any public works contract entered
  into or renewed prior to the effective date of this section.
    q. Nothing in this section shall be  construed  to  limit  the  city's
  authority  to  cancel or terminate a contract, deny or withdraw approval
  to perform a subcontract or provide supplies, issue a non-responsibility
  finding, issue a non-responsiveness finding, deny  a  person  or  entity
  pre-qualification as a vendor, or otherwise deny a person or entity city
  business.