Clarification of Definition of “Processing Device”

Online comments: 8

• Eric

  The Department of Environmental Protection (DEP), despite New Yorkers having a constitutional right to clean air and a healthy environment, once again is acting to permit additionally idling and air pollution in NYC. In the last rulemaking on this “processing device” excuse, which created significant public outcry at the DEP’s attempts to gut the Idling law, the DEP eventually came to a definition that, with respect one subpart, provided an exhaustive list of processing device types that would qualify as an excuse to pollute the air and damage the health (and potentially kill) New Yorkers. At least this exhaustive list provided some guidance to the public as to what devices would qualify.

  Now, the DEP moves to render the list meaningless, and make it utterly unclear to the public (a public that may or may not know how to examine or determine “mechanical connections” in a vehicle) how to determine what is and what is not a processing device that will excuse idling.

  If the DEP were less lazy, it might consider, in the definition, identifying and naming additional device types, the operation of which the DEP considers important enough to sacrifice New Yorkers’ constituionally-protected health to. Instead, the DEP relies on vagueness, to give the DEP more arbitrary power during the review process.

  The DEP’s proposed additional complication of the idling law, which is already fairly complicated, renders the citizen complaint program even more confusing and inhospitable than it already is to new participants in underserved communities, like the South Bronx.

  The DEP, with this proposed rulemaking, is failing New Yorkers, failing underserved communities, and failing our new Constitutional right to clean air. The DEP has forgotten its mission, protection of the environment, and should seriously consider why the DEP even exists in the first place. Rohit Aggarwala, who has repeatedly spoken about operationalizing protection of the environment into agency decisionmaking, should also act to ensure that this sort of environment-harming rulemaking proposal by the DEP never happens again.

  Comment added November 29, 2022 7:11pm

• Michael McFadden

  I am opposed to this proposal to change the current idling law by rule change. This is the actual goal that the proposed clarification of the definition of “processing device” is designed to accomplish.

  This law, as well as the citizen enforcement provisions of the law, has been in place for multiple years without issue or concern by the DEP.

  This rule change proposal is brought about by the now much greater and active participation of the public in the enforcement of NYC’s illegal idling law. During 2022 citizens will have made nearly 50,000 complaints of illegal idling to the DEP. The DEP has for decades failed to enforce this law in a meaningful manner and has granted actual or DeFacto exemptions to the law to an entire industry, the armored car industry. They have in the past granted an exemption (variance) to Loomis Armored, within 5 calendar days after application, with NO NOTICE TO THE PUBLIC, as was and is required, or any meaningful review of the application or any of the alternatives to prevent idling. (Application dated Feb. 22, 2019, was approved Feb 26, 2019) They later published on the Citizens Complaint Program page that Armored Cars – ALL – from all companies without having even applied for a variance – were exempted from citizens reporting incidents of illegal idling. This has since been changed due to the active participation and outcry by involved citizens. They also have posted on their web page and continue to NOT ISSUE REPEAT OFFENSE VIOLATIONS to repeat offenders, unless the reporting citizen notifies them of the prior offenses. Yes, that is what I said the DEP chooses to not bother to issue repeat offense violations to repeat offenders unless the DEP is informed of the prior offenses by the citizen. The DEP additionally provides no direction on how to research repeat violation information to the citizen. The DEP has and continues to reject citizen idling complaints that meet the criteria listed in the law, with rules that they have imposed that are outside of the current law. These are not bad complaints or complaints that are lacking what is required as some undoubtedly are.

  In the example the DEP has provided in this rule making request, they list the hazard or warning lights on a Con Ed truck, as an example of something that does not meet the strict definition of a processing device in the current definition. In other words, this may be something that should be allowed by the proposed change of definition.
  The problem with this is that these lights are LED and require very minimal power supply to fully power them. They can easily be powered by vehicle batteries or accessory batteries which would avoid the use of a large truck engine running to accomplish this. How would allowing this help to prevent unnecessary engine idling? Why would our Department of Environmental Protection propose a change like this? How would allowing this change help the DEP prevent us from being exposed to unnecessary engine idling and all of the ill effects to people and the environment this causes? I do not believe that it can help lessen illegal idling, this change has only one outcome, and that is to allow more incidents of idling to be allowed.

  This proposal would allow the DEP by rule, to allow all sorts of currently disallowed activities to then be permitted. This has the potential to gut the current effective law, seeking to improve NYC’s air quality which currently remains below federal standards.

  DO NOT ALLOW THE DEP to make these changes by rule. If these changes are to be made, let the legislature change the law and leave the enforcement of the law to the DEP and the other agencies with jurisdiction.

  Comment attachment
  Copy-of-Citizens-Complaint-Page-exerpts.pdf

  Comment added December 28, 2022 12:37pm

• Patrick Schnell

  I very much hope that this proposed change will not tempt DEP to dismiss otherwise valid idling cases based on mere technicalities going forward. Not every little blinking light seen on a vehicle should be an excuse to dismiss cases. DEP has a horrible track record of dismissing cases inappropriately due to a lack of critical thinking and the overwhelming urge to use every possible excuse to NOT pursue idling cases, no matter how far-fetched the excuse. DEP is not even able to define a minute as a minute, or 3 minutes as 3 minutes, so I am a little pessimistic about open-ended language in rulings that seem otherwise innocuous.
  At this point, I would like to remind the NYC DEP that idling is bad for the environment, and that breathing exhaust fumes is harmful to human health.
  Thank you,
  Patrick Schnell, M.D.

  Comment added December 28, 2022 7:49pm

• Andrew Bravo

  Diesel trucks and buses produce fine particulates as well as nitrogen oxides, sulfur dioxide, carbon oxides, and over 40 kinds of toxic emissions. Gasoline-powered vehicles produce nitrogen oxides, carbon oxides, and other toxic contaminants, including benzene. Catalytic converters may reduce vehicle emissions somewhat, but the number of vehicles on the road is soaring. Collectively, the impact of these emissions is enormous.

  Idling vehicles in the United States are believed to collectively expel millions of tons of carbon dioxide a year, and researchers have estimated that eliminating excessive idling from personal vehicles alone would have a similar impact to taking 5 million of the nation’s 250 million cars off the streets.

  Exhaust from motor vehicles is a key component of SMOG, accelerates the CLIMATE CRISIS, and gives rise to serious health harms. What is more, very FINE PARTICLES emitted from diesel and gas engines are known lung irritants that trigger asthma attacks and bring about serious health conditions. It kills people. All of these contaminants are produced when motor vehicles idle. The anti-idling law and NYC’s anti-idling regulations are designed to decrease these harmful gases by reducing unnecessary idling.

  SMOG irritates the eyes, nose, and throat. As smog increases, it triggers more insidious health problems, including asthma, bronchitis, increased susceptibility to respiratory infections, and decreased lung function. In addition, particulates from vehicle exhaust contribute to haze observed year round.

  CLIMATE CRISIS: Carbon dioxide, the largest contributor to global warming, is produced, among other ways, when fuel is burned to power motor vehicles. Importantly, it is produced even when vehicles idle. An increase in concentration of carbon dioxide and other global warming gases in the atmosphere has been correlated with rising global average temperatures. This increase in temperature is responsible for heat waves, droughts, floods, and spread of disease. Stabilizing atmospheric carbon dioxide concentrations is essential to avoid these environmental threats. An easy way to reduce carbon dioxide production is to stop idling vehicles without absolute need.

  FINE PARTICLES: Exhaust from buses and other diesel-powered vehicles contains particulate matter, including fine particles, that can penetrate deep into the lungs and even enter the blood stream, posing serious health problems for children, the elderly, and people with respiratory ailments. Fine particles can cause lung damage, aggravate respiratory conditions such as asthma and bronchitis, increase heart disease, lead to cancer, and can contribute to premature death.

  The anti-idling law and NYC’s anti-idling regulations are designed to decrease these harmful gases by reducing unnecessary idling. A vehicle may idle longer, but only if ABSOLUTELY NECESSARY.

  Accordingly, if the Department of Environmental Protection wishes to carve out exceptions, it should do so with specificity—precisely as it already has done—when enumerating the terms “lift, crane, pump, drill, hoist, or mixer” in order to allow for informed public comment, to give proper public notice, and for fair administration.

  DEP’s proposal to amend section 39-01 of Title 15 of the Rules of the City of New York to add the language “but not limited to” fails to “clarify” the definition of “Processing Device” as it purports to do and instead introduces unnecessary and confusing ambiguity contrary to DEP’s Mission to “enrich the environment and protect public health for all New Yorkers by providing high quality drinking water, managing wastewater and stormwater, and reducing air, noise, and hazardous materials pollution.”

  DEP’s proposal should be rejected.

  Comment added December 28, 2022 8:52pm

• Ephraim

  I think the over-arching reason not to enact this is pretty simple: it is impermissibly vague, and will open the door wide to defense attorneys who will start arguing that all sorts of things constitute “processes”, leading to a patchwork of conflicting rulings and a general mess that often lets polluters off the hook.

  If the DEP has some specific ideas as to what devices they might like included, they should do them one at a time, ideally, with input.

  Also, “a temperature control system for food” could mean heat or AC to maintain the palatability of a driver’s lunch. This needs a rethink. Probably the best idea is to ask City Council to change the law, but only for the most deserving and obvious of cases.

  Comment added December 28, 2022 9:24pm

• Hayden Brockett

  DEP’s legal duty is to protect New Yorkers’ constitutional right to clean air. The current proposal would water down an existing rule that, while perhaps not perfect, does protect our air quality. Changing the rule as currently proposed only serves to help polluters. Thus, this proposed rulemaking is a mistake and should be rescinded.

  The current rule, as correctly interpreted by OATH, provides an exhaustive list of the devices that a vehicle may run using its idling engine. There is no reason to weaken the existing rule. Indeed, it only serves polluters to make the current exhaustive list non-exhaustive. It is difficult to see how it fulfills DEP’s missing to make a current clear, easy-to-administer rule less clear and indeed more nebulous.

  This rule change should be rejected.

  Comment added December 28, 2022 11:42pm

• Hunter

  Would prefer to see more reductive wording rather than inclusive wording. I think that any changes in language would need to take a really thorough look at the scope of appeals history, which I think could be done more. I am aware of a group of citizens who have recently begun cataloguing appeals on a volunteer basis.

  From personal experience winning numerous idling hearings, I expect that any change in the language of “processing device” would be exploited to the maximum possible extent by respondents. I consider it very important that a “processing device” is explicitly specified as an external device that is not related to the internal functioning of a vehicle.

  A major topic that has come up many times in hearings is regeneration. Claiming that their vehicles were “regenerating” would simply give trucking companies free rein to idle all day long. In the future with more automated systems, companies would even be able to provide data to “prove” their vehicle was regenerating at a particular point in time. It must be upheld that regeneration is not a valid defense to idling, as the Board of the OATH Appeals Division has consistently maintained. It is simple not acceptable for largely out of state operators to come to New York City to “regenerate” their vehicles.

  The proposed change fails to account for a “regeneration” defense:
  (1) a device that accomplishes the function for which the vehicle or equipment was designed, other than transporting goods or people, via a mechanical connection to the engine, including but not limited to operating a lift, crane, pump, drill, hoist, or mixer;

  Comment attachment
  Appeals.pdf

  Comment added December 29, 2022 11:25am

• Brian Gatens

  The rule is appropriate and workable in its current form. DEP has not publicly identified any decisions at OATH that it says should have been decided differently; i.e. any decisions in which a Processing Device exception should have applied, but did not due to the existing definition. Dicta from the cited case (DEP v. Con Edison, appeal # 2200691) is an inappropriate justification for a change in the law. Accordingly, the proposed rule change should be rejected.

  Comment added December 29, 2022 2:28pm