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Environment & Energy Report

New York to Finally Enforce Its Cleaner-Diesel Law—of 2006

June 28, 2019, 5:35 PM

Building and construction companies doing business with New York state will have to retrofit or replace their older diesel vehicles by year’s end because no language to block the requirement—enacted more than a decade ago—was passed by the Legislature this year.

A bill (A.11340/S.8185) known as the Diesel Emissions Reduction Act, or DERA, passed in 2006, required the fleet of heavy-duty vehicles owned by the state, and businesses doing work for the state, to use ultra-low sulfur fuel. It also required those vehicles purchased before 2007—such as dump trucks, cranes, backhoes, and others used in construction—to be retrofitted or phased out to reduce diesel exhaust particle pollution.

Lawmakers for years yielded to concerns of the building and construction industry, putting provisions in state law to delay the implementation. But in the 2019 legislative session that ended last week, the Democratic-lead Legislature afforded—if quietly—no such respite. So the provision will take effect Jan. 1, 2020.

“We’re finally going to get these vehicles off the road,” said Conor Bambrick, air and energy director at Environmental Advocates of New York. “It’s been too long that we’ve had to wait, to suffer under the pollution that these vehicles are causing. It’s really too bad that we’ve had to wait this long.”

Most State-Owned Vehicles in Compliance

State officials said about 97 percent of state-owned vehicles already are compliant, but it’s difficult to estimate how many contractors would be affected.

Industry advocates are now looking to the state to provide details on how it will enforce the law. They cite concerns about the cost of compliance, particularly for small businesses that may not have phased out their older vehicles yet.

“It’s a challenge both for the private sector that does work for the state, and also for the state agencies,” Mike Elmendorf, president and chief executive officer for Associated General Contractors of New York State.

The implementation of the law comes after the state Legislature last week passed its version of the Green New Deal, setting the most aggressive clean-energy targets in the country. The climate bill, which still must be signed by Gov. Andrew M. Cuomo (D), calls for an 85% reduction in economywide emissions from 1990 levels by 2050.

Advocates have lauded it as the best environmental legislative session in a generation, attributing the passage of many bills that have stalled for years to the new Democratic majority in the Senate. The change helped allow the diesel fuel emissions law to fully take effect, they said.

The state’s law regarding diesel fuel emissions came as the Environmental Protection Agency in 2006 began phasing in more stringent ultra-low sulfur regulations, limiting sulfur content to 15 parts per million in diesel fuel.

California, which has some of the worst air quality in the nation, has been at the forefront of regulating diesel fuel, having passed its low-sulfur diesel fuel regulations in 2003.

State Compliance

Under New York’s law, diesel-using vehicles that weigh 8,500 pounds or more that the state or businesses contracting with the state use must be retired or retrofitted to reduce pollution, including emissions of nitrogen oxides.

This doesn’t apply to vehicles purchased after 2007, after which all heavy-duty diesel vehicles were required by the EPA to comply with the more stringent emissions standards.

The law sets out a phase-in period, which has since passed. It also provides a waiver, allowing the vehicle to be used as is for one year, after which it must be retired.

“State agencies have made substantial progress to comply with DERA, both through retrofits and replacing older vehicles,” according to a statement from the state Department of Environmental Conservation.

Of the 11,969 on-road heavy duty diesel vehicles subject to the law, about 97 percent were compliant in 2017, according to the most recent data available from the department.

Most— about 7,369—of the state’s vehicles are already certified to 2007 and newer standards, according to the DEC. An additional 4,088 were retrofitted, and 199 received waivers, according to the department. Some federal funds can be used to replace non-compliant vehicles.

About 90 percent—about 2,600—of the state Department of Transportation’s vehicles are in compliance, and the rest are expected to be by the end of the year, department spokesman Glenn Blain said in an email. The department has been phasing out its high-emission diesel vehicles, the cost of which has been factored into its annual vehicle replacement program, he said.

Costs to Contractors

It’s unclear how many contractors will be affected, said Elmendorf of the state general contractors association. The association has around 600 members statewide, including general, specialty, and subcontractors.

Many of the vehicles already have aged out and have been replaced due to the length of time since the law’s passage, Elmendorf said. The smaller companies don’t buy as much equipment, or as frequently, so they may have more difficulty complying with the law.

The law won’t impact subcontractors or material supplies, like those transporting sand and gravel to a construction site, as a result of a court decision on a lawsuit challenging the DEC’s regulations.

Purchasing new equipment can be extremely costly, but retrofitting also comes at a price, said Dave Hamling, president and CEO of the New York Construction Materials Association.

The DEC estimated costs to install retrofits to be between $10,000 and $20,000, noting that it may exceed the value of the vehicle.

The trade associations argue that retrofits often produce undesirable results, decreasing fuel efficiency, or output and horsepower. The result: either more trucks on the road or more fuel being used, Hamling said.

And noncompliance will be just as costly.

The state Department of Environmental Conservation will enforce the law through contractual language, according to an emailed statement from the department. A first violation of air pollution regulations would result in a minimum fine of $500 and maximum of up to $18,000, according to the department. The fine for subsequent violations is $26,000.

The trade associations and their members are waiting to see how the state rolls out the 13-year-old law, and more importantly, how it’s enforced, Hamling said.

“How are they going to enforce against the private sector company when the state vehicle may be on the same site that’s non-compliant?” he asked. “There’s some real significant policy issues at work here.”

To contact the reporter on this story: Keshia Clukey in Albany, N.Y., at kclukey@bloomberglaw.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com