Section 24-163.5. Use of ultra low sulfur diesel fuel and best available retrofit technology in the fulfillment of solid waste contracts and recyclable materials contracts

a.  Definitions.  When  used  in this  section:
    (1) "Best available retrofit technology" means technology, verified by
  the United States environmental protection agency or the California  air
  resources   board   unless   as  otherwise  deemed  appropriate  by  the
  commissioner for  a  nonroad  vehicle,  for  reducing  the  emission  of
  pollutants  that  achieves reductions in particulate matter emissions at
  the highest classification level for diesel emission control strategies,
  as set forth in subdivision d of this section, that is applicable to the
  particular engine and application. Such  technology  shall  also,  at  a
  reasonable cost, achieve the greatest reduction in emissions of nitrogen
  oxides  at such particulate matter reduction level and shall in no event
  result in a net increase in the emissions of either  particulate  matter
  or nitrogen oxides.
    (2)  "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.
    (3) "Contractor" means any person or entity that enters into  a  solid
  waste  contract  or recyclable materials 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
  solid waste contract or recyclable materials contract.
    (4) "Motor vehicle" shall mean a vehicle operated  or  driven  upon  a
  public  highway  which  is  propelled  by  any power other than muscular
  power, except electrically-driven mobility assistance  devices  operated
  or driven by a person with a disability.
    (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  the
  fulfillment   of  any  solid  waste  contract  or  recyclable  materials
  contract.
    (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, front loaders, excavators,  backhoes,  cranes,  compressors,
  generators, bulldozers and similar equipment.
    (7) "Operate primarily within the city of New York" means that greater
  than  fifty  percent  of  the  time  spent  or miles traveled by a motor
  vehicle or nonroad vehicle during  the  performance  of  a  solid  waste
  contract  or recyclable materials contract occurs within the city of New
  York.
    (8) "Person" means any natural person, co-partnership, firm,  company,
  association,   joint   stock  association,  corporation  or  other  like
  organization.
    (9) "Reasonable cost" means that such technology does not cost greater
  than thirty  percent  more  than  other  technology  applicable  to  the
  particular   engine   and   application   that  falls  within  the  same
  classification level for diesel  emission  control  strategies,  as  set
  forth in subdivision d of this section, when considering the cost of the
  strategies, themselves, and the cost of installation.
    (10)  "Recyclable  materials" means solid waste that may be separated,
  collected, processed, marketed and returned to the economy in  the  form

  of  raw  materials  or  products,  including but not limited to types of
  metal, glass, paper, plastic, food waste, tires and yard waste.
    (11)  "Recyclable  materials  contract"  means  a contract with a city
  agency, the primary purpose of which is to  provide  for  the  handling,
  transport or disposal of recyclable materials.
    (12)  "Solid  waste"  means  all  materials or substances discarded or
  rejected as being  spent,  useless,  or  worthless,  including  but  not
  limited  to  garbage,  refuse,  industrial and commercial waste, sludges
  from air or water pollution control facilities or water supply treatment
  facilities, rubbish,  ashes,  contained  gaseous  material,  incinerator
  residue, demolition and construction debris and offal, but not including
  sewage  and  other  highly diluted water-carried materials or substances
  and those in gaseous forms.
    (13) "Solid waste contract" means a contract with a city  agency,  the
  primary  purpose  of  which is to provide for the handling, transport or
  disposal of solid waste.
    (14) "Ultra low sulfur diesel fuel"  means  diesel  fuel  that  has  a
  sulfur content of no more than fifteen parts per million.
    b. (1) Any solid waste contract or recyclable materials contract shall
  specify   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 be powered by
  ultra low sulfur diesel fuel and all contractors in the  performance  of
  such contract shall comply with such specification.
    (2)  Any  solid  waste contract or recyclable materials contract shall
  specify that, as  of  March  1,  2006,  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 the best available retrofit technology and all
  contractors in the performance of such contract shall comply  with  such
  specification.
    c. (1) The commissioner shall make determinations, and shall publish a
  list  containing  such determinations, as to the best available retrofit
  technology to be used for each type of diesel fuel-powered motor vehicle
  and diesel fuel-powered nonroad vehicle to which this  section  applies.
  Each  such  determination shall be reviewed and revised, as needed, on a
  regular basis, but in no event less often than once every six months.
    (2) No contractor shall be required to replace best available retrofit
  technology  or  other  authorized  technology  utilized  for  a   diesel
  fuel-powered  motor  vehicle  or  diesel fuel-powered nonroad vehicle in
  accordance with the provisions of this section  within  three  years  of
  having  first  utilized  such  technology  for such vehicle, except that
  technology that falls within Level 4, as set forth in subdivision  d  of
  this  section, shall not be required to be replaced until it has reached
  the end of its useful life.
    d. The classification levels for diesel  emission  control  strategies
  are as follows, with Level 4 being the highest classification level:
    i. Level  4  - strategy reduces diesel particulate matter emissions by
  85 percent or greater or reduces engine emissions to less than or  equal
  to 0.01 grams diesel particulate matter per brake horsepower-hour;
    ii. Level  3 - strategy reduces diesel particulate matter emissions by
  between 50 and 84 percent;
    iii. Level 2 - strategy reduces diesel particulate matter emissions by
  between 25 and 49 percent;
    iv. Level 1 - strategy reduces diesel particulate matter emissions  by
  between 20 and 24 percent.
    e.  A  city  agency  shall  not  enter  into a solid waste contract or
  recyclable materials 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.  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 of this section if ultra low sulfur  diesel  fuel  is  not
  available  to  meet the needs of 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  such  lack  of
  availability persists,  but  in  no  event  shall  be  in  effect  after
  September 1, 2006.
    g. The commissioner may issue a waiver for the use of ultra low sulfur
  diesel  fuel  where the city agency that has entered into the applicable
  solid waste contract or recyclable materials contract  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 f of this section, is
  not  available  to  meet the requirements of this section, provided that
  the contractor, 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 for its diesel
  fuel-powered vehicles. Any waiver issued pursuant  to  this  subdivision
  shall  expire  after  two  months,  unless  the  city  agency renews the
  finding, in writing, and the  commissioner  approves  such  renewal,  in
  writing.
    h.  The  commissioner  may  issue  a  waiver  for  the use of the best
  available retrofit technology by a diesel fuel-powered motor vehicle  or
  diesel  fuel-powered  nonroad  vehicle  where  the  city agency that has
  entered into the applicable solid waste contract or recyclable materials
  contract makes a written finding, which is approved, in writing, by  the
  commissioner,  that such technology is unavailable for purchase for such
  vehicle, in which case the contractor  shall  be  required  to  use  the
  technology  for  reducing  the  emission of pollutants that would be the
  next best best available retrofit technology and that is  available  for
  purchase   for   such  vehicle.  Any  waiver  issued  pursuant  to  this
  subdivision shall expire after three years.
    i. (1) Paragraph two of subdivision b of this section shall not  apply
  to  a  diesel-fuel powered motor vehicle that is equipped with an engine
  certified to the applicable 2007 United States environmental  protection
  agency standard for particulate matter as set forth in section 86.007-11
  of  title  40  of  the  code of federal regulations or to any subsequent
  United  States  environmental  protection  agency  standard   for   such
  pollutant that is at least as stringent.
    (2)  Paragraph two of subdivision b of this section shall not apply to
  a diesel-fuel powered nonroad vehicle that is equipped  with  an  engine
  certified  to  the  applicable  United  States  environmental protection
  agency standard for particulate matter for such vehicle as set forth  in
  the  Control  of  Emissions of Air Pollution from Nonroad Diesel Engines
  and Fuel; Final Rule, published in the federal register on June 29, 2004
  at 69 Fed. Reg. 38,958 et seq.,  or  to  any  subsequent  United  States
  environmental  protection  agency standard for such pollutant that is at
  least as stringent.

    j. (1) Not later than January 1, 2007, and not later than January 1 of
  each year thereafter, the commissioner shall  submit  a  report  to  the
  comptroller  and  the  speaker  of  the  council  regarding, among other
  things, the use of ultra low sulfur diesel fuel and the use of the  best
  available  retrofit technology by diesel fuel-powered motor vehicles and
  diesel fuel-powered nonroad vehicles used in the performance of a  solid
  waste  contract  or recyclable materials contract during the immediately
  preceding fiscal year. This report shall include, but not be limited to:
  (i) the total number of diesel fuel-powered motor  vehicles  and  diesel
  fuel-powered  nonroad vehicles, respectively, used in the performance of
  solid waste contracts or recyclable materials contracts; (ii) the number
  of such motor vehicles and nonroad  vehicles,  respectively,  that  were
  powered  by ultra low sulfur diesel fuel; (iii) the number of such motor
  vehicles and nonroad vehicles,  respectively,  that  utilized  the  best
  available  retrofit  technology, including a breakdown by vehicle model,
  engine year and the type of technology used for each vehicle;  (iv)  the
  number  of  such motor vehicles and nonroad vehicles, respectively, that
  utilized other authorized technology in accordance  with  this  section,
  including  a  breakdown  by  vehicle  model, engine year and the type of
  technology used for each vehicle; (v) the number of such motor  vehicles
  and  nonroad  vehicles,  respectively,  that are equipped with an engine
  certified to  the  applicable  United  States  environmental  protection
  agency  standard for particulate matter in accordance with subdivision i
  of this section; (vi)  the  locations  where  such  motor  vehicles  and
  nonroad  vehicles,  respectively,  that were powered by ultra low sulfur
  diesel fuel, utilized the best available retrofit  technology,  utilized
  such other authorized technology in accordance with this section or were
  equipped  with  an  engine  certified  to  the  applicable United States
  environmental protection agency standard  for  particulate  matter  were
  used; (vii) all waivers, findings, and renewals of such findings, issued
  pursuant  to subdivision g of this section, which shall include, but not
  be limited to, for each waiver, the quantity of diesel  fuel  needed  by
  the  contractor  to  power diesel fuel-powered motor vehicles and diesel
  fuel-powered nonroad vehicles used to  fulfill  the  requirements  of  a
  solid   waste   contract  or  recyclable  materials  contract;  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 f
  of this section; and detailed information  concerning  the  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 f  of  this  section;
  and (viii) all waivers issued pursuant to subdivision h of this section,
  which  shall  include,  but not be limited to, all findings and specific
  information submitted by the city agency or contractor upon  which  such
  waivers  are  based and the type of other authorized technology utilized
  in accordance with this section in relation to each waiver,  instead  of
  the best available retrofit technology.
    (2)  Where  a  determination is in effect pursuant to subdivision f 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.
    k. 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.

    l.  Any  contractor who violates any provision of this section, except
  as provided in subdivision m of this section,  shall  be  liable  for  a
  civil  penalty  of  not less than one thousand dollars and not more than
  ten thousand dollars, in addition to twice the amount of money saved  by
  such contractor for failure to comply with this section.
    m.  Where  a contractor has been found to have made a false claim with
  respect to the provisions of this  section,  such  contractor  shall  be
  liable for an additional civil penalty of twenty thousand dollars.
    n.  This  section  shall  not  apply  to  any  solid waste contract or
  recyclable materials contract entered  into  or  renewed  prior  to  the
  effective date of this section.
    o.  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.