Section 24-163.7. Use of ultra low sulfur diesel fuel and best available retrofit technology in school bus transportation

a.  Definitions.  For  the  purposes  of  this section only, the following terms shall have the
  following meanings:
    (1) "Best available retrofit technology" means technology, verified by
  the United States environmental protection agency or the California  air
  resources  board,  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  e  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)  "Department  of  education" means the New York city department of
  education, formerly known as the New York city board of  education,  and
  any  successor  agency or entity thereto, the expenses of which are paid
  in whole or in part from the city treasury.
    (3) "Person" means any natural  person,  partnership,  firm,  company,
  association, joint stock association, corporation or other legal entity.
    (4) "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 e of this section, when considering the cost of the
  strategies, themselves, and the cost of installation.
    (5) "School bus" means any vehicle operated pursuant to a  school  bus
  contract, designed to transport ten or more children at one time, of the
  designation  "Type  C  bus"  or "Type D bus" as set forth in 17 NYCRR §§
  720.1(Z) and (AA), and used to transport children to or from any  school
  located  in  the  city  of  New York, and excluding any vehicle utilized
  primarily to transport children with special educational  needs  who  do
  not  travel  to  and  from  school in vehicles used to transport general
  education students.
    (6) "School bus contract" means any agreement between any  person  and
  the department of education to transport children on a school bus.
    (7) "Ultra low sulfur diesel fuel" means diesel fuel that has a sulfur
  content of no more than fifteen parts per million.
    b. (1) Beginning July 1, 2006, any diesel fuel-powered school bus that
  is  operated  by  a  person who fuels such school bus at any facility at
  which ultra low sulfur diesel fuel is available, or of which such person
  has the exclusive use and control, or  at  which  such  person  has  the
  ability  to  specify  the fuel to be made available, shall be powered by
  ultra low sulfur diesel fuel.
    (2) Beginning September 1, 2006, any diesel fuel-powered school bus to
  which paragraph one of this subdivision does not apply shall be  powered
  by ultra low sulfur diesel fuel.
    c.  Diesel  fuel-powered school buses shall utilize the best available
  retrofit technology in accordance with the following schedule:
    i. 50% of school buses used to fulfill each  school  bus  contract  by
  September 1, 2006;
    ii.  100%  of school buses used to fulfill each school bus contract by
  September 1, 2007.
    d. (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 school bus 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  person  shall  be required to replace best available retrofit
  technology  or  other  authorized  technology  utilized  for  a   diesel
  fuel-powered  school  bus  in  accordance  with  the  provisions of this
  section within three years of having first utilized such technology  for
  such bus, except that technology that falls within Level 4, as set forth
  in  subdivision  e of this section, shall not be required to be replaced
  until it has reached the end of its useful life.
    (3) For purposes of this  subdivision,  any  best  available  retrofit
  technology,  or substantially similar technology, purchased or installed
  in whole or in part with funds provided by the state of New York or  the
  federal  government  pursuant  to  a specific diesel emissions reduction
  program in effect upon the date of  enactment  of  this  section,  shall
  constitute  the  best  available retrofit technology for a period of not
  less than three  years  from  the  date  on  which  such  equipment  was
  installed.
    e.  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.
    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 subdivision b  of  this
  section  if  ultra  low  sulfur diesel fuel is not available to meet the
  needs of school buses to fulfill the requirements of this section.  Such
  determination  shall  expire  after  six  months and shall be renewed in
  writing every  six  months  thereafter  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 department of education 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
  school buses, 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 waiver issued
  pursuant to this subdivision shall expire after two months,  unless  the
  city  agency  renews  the  finding,  in  writing,  and  the commissioner
  approves renewal, in writing.
    h. The commissioner may issue  a  waiver  for  the  use  of  the  best
  available  retrofit technology by a diesel fuel-powered school bus where
  the department of education makes a written finding, which is  approved,
  in writing, by the commissioner, that such technology is unavailable for
  purchase  for  such  bus,  in  which  case the owner or operator of such
  school bus 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 bus. Any

  waiver issued pursuant to this  subdivision  shall  expire  after  three
  years.
    i.  Subdivision  c  of  this  section shall not apply to a diesel-fuel
  powered school bus 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.
    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 school  buses  during  the  immediately
  preceding  fiscal  year.  The information contained in this report shall
  also be included in the mayor's preliminary management  report  and  the
  mayor's  management  report  for  the  relevant  fiscal  year  and shall
  include, but not be limited to: (i) the number of school buses  used  to
  fulfill  the  requirements  of  school bus contracts; (ii) the number of
  such buses that were powered by ultra low sulfur diesel fuel; (iii)  the
  number   of  such  buses  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 buses
  that utilized  other  authorized  technology  in  accordance  with  this
  section, including a breakdown by vehicle model, engine age and the type
  of  technology  used for each vehicle; (v) the number of such buses 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 school districts
  where such buses 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 school
  bus owner or operator to power diesel fuel-powered school buses used  to
  fulfill  the requirements of a school bus 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 school bus owner's or
  operator'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 department of education  or  a  school  bus
  owner  or  operator  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;
    (2) to purchases that are emergency procurements pursuant  to  section
  three hundred fifteen of the New York city charter; or
    (3)  where  federal  or  state  law  prohibits  the application of the
  requirements of this section.
    l. Any person 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
  person for failure to comply with this section.
    m.  Where  a  person  has  been  found to have made a false claim with
  respect to the provisions of this section, such person shall  be  liable
  for an additional civil penalty of twenty thousand dollars.
    n.  This  section  shall  not apply to any school bus contract entered
  into or renewed prior to the effective date of this section.
    o. Nothing in this section shall be construed to limit  the  authority
  of  the  department of education or of the city of New York 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 prequalification as
  a vendor, or otherwise deny a person or entity city business.