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Processing Device and Vehicle Idling

Rule status: Adopted

Agency: DEP

Effective date: June 22, 2022

Proposed Rule Full Text
Processing-Device-Def-Rule-for-City-Record.pdf

Adopted Rule Full Text
Processing-Device-Rule-Final.pdf

Adopted rule summary:

Online comments: 13

  • Eric E

    I see that, instead of responding to the instant community board
    rulemaking request
    (https://cbmanhattan.cityofnewyork.us/cb4/wp-content/uploads/sites/10/2021/11/17-TRANS-Letter-to-DEP-re-Idling-Fines.pdf)
    to strengthen the idling law through a penalty schedule adjustment
    within the ranges enacted by City Council, as DEP was required under
    CAPA 1043(g) to do within 60 days of November 9, 2021, DEP has instead
    today proposed a rule to narrow what counts as illegal idling by
    broadening the “processing device” exemption
    (https://rules.cityofnewyork.us/rule/processing-device-and-vehicle-idling/).
    DEP is attempting to broaden the current, narrow, court (i.e.
    OATH)-interpreted standard of what counts as a “processing device”
    exemption under the law (see e.g.
    http://archive.citylaw.org/wp-content/uploads/sites/12/ecb/2001530.pdf
    setting out the narrow standard) and to replace it with an impossibly
    broad and vague standard based on idling being allowed whenever the
    vehicle is using equipment according to however the vehicle was
    “designed”. DEP did so in direct contravention of MCB4’s prior letter
    that expressed a wish to limit such exemptions to only cement mixing
    trucks (https://cbmanhattan.cityofnewyork.us/cb4/wp-content/uploads/sites/10/2020/02/07-TRANS-Letter-to-DEP-re-Increased-Idling-Enforcement.pdf).

    If this “processing device” rule goes into effect, just about every
    commercial idler will think that it has some excuse to keep its engine
    incessantly running (when it could just buy a backup power system for
    any necessary work instead). DEP also has no statutory authority to
    rewrite clear anti-idling laws to make them weaker. DEP is not a
    legislature, and cannot legally simply weaken environmental laws,
    carefully and clearly constructed by the City Council, simply because
    it would prefer to give most polluters a
    get-out-of-environmental-responsibility-free card from the
    requirements of the law.

    DEP appears intent on gutting the will of the people, expressed by NY
    constitutional amendment (our new right to clean air) and by the
    community, and also intent on increasing the suffering from vehicle
    exhaust in communities such as Chelsea, Hell’s Kitchen, and Mott Haven
    which already suffer more than their share. DEP should be absolutely
    ashamed of itself.

    If NYC’s Department of Environmental Protection refuses to use its
    resources to protect the environment, instead of to pollute it, who
    will protect the environment?

    Selected further reading about the harms caused by the exhaust that DEP seems intent on increasing:

    https://www.theguardian.com/us-news/2019/apr/04/new-york-south-bronx-minorities-pollution-inequity (Minority Communities in Mott Haven Suffering Disproportionately From Vehicle Exhaust)

    https://www.theguardian.com/environment/2018/jul/04/report-links-childs-asthma-death-to-illegal-levels-of-air-pollution (Dead Child From Vehicle Exhaust)

    https://theprint.in/science/93-of-worlds-children-breathe-air-that-could-kill-them-before-adulthood-who-report/142094/ (Almost All Children Harmed from Air Pollution)

    Comment added January 26, 2022 9:24am
  • Brian Gatens

    New York City Charter § 1042 requires the DEP to publish its proposed regulatory changes in its yearly regulatory agenda. It further provides that, if a proposed rule was not included in the agenda, then the notice of proposed rulemaking should include an explanation for why the agenda did not include the proposed rule. DEP did not provide such an explanation here. While this error might not “invalidate the rule”, DEP should not ignore the Charter and the notice should be amended.

    Comment added January 31, 2022 1:26pm
  • Eric E

    I would like to bring to DEP’s attention the DEP’s prior representations, as contained in the attached letter to Manhattan Community Board 4 (MCB4), that “Any changes to the existing law, to limit the exceptions as set forth in Section 24-163 of the APC, would require a change in law. Any change in this law would have to occur by the City Council introducing legislation to amend the APC.”

    In proposing the instant rule to change the exceptions as set forth in Section 24-163 of the APC, not through encouraging City Council legislation but rather through DEP rulemaking, the DEP is contradicting its prior representations to important public bodies. Accordingly, I ask that the DEP, consistent with its past representations, withdraw its instant proposed “processing device” exemption modification rule, or at the very least provide a detailed explanation as to why its prior representation to MCB4 was untrue.

    Comment attachment
    Lazarin-idling.pdf
    Comment added January 31, 2022 5:57pm
  • Eric E

    I would also like to point out that this language with respect to “processing device” was explicitly introduced, and then rejected, by the City Council (Int 0230-2014). Even in that rejected bill, safeguards were put in place, for example through proposed changes to closely related 24-163, to require for example active use of the processing device to qualify for an exemption – safeguards that are not present in the instant rulemaking proposal.

    The City Council heard testimony together on two bills, Int 0230-2014 and Int 0271-2014. There was testimony from concerned citizens and groups about how unduly allowing carveouts to the idling law would do extensive damage to our air. Apparently, the City Council was convinced. Ultimately, the City Council chose to enact only Int 0271-2014, which addressed the relevant “processing device” statutory language through narrowly defining “process”.

    I ask that DEP closely review the legislative history of both the rejected and the enacted bill.

    The City Council has spoken and spoken clearly on the relevant statutory language. It did not want the broad definition that the DEP now proposes. It wanted the narrow definition which it introduced or clarified through enacted Int 0271-2014.

    The DEP’s attempt to resurrect language so explicitly rejected by the City Council flies in the face of good governance. The DEP should not put itself in the place of a legislature, and should not overturn legislative decisions of the City Council. This is a basic principle of administrative law, and DEP’s defiance of this principle, at the risk of undercutting our new Constitutional right to clean air, is not only ultra vires, but also unconstitutional, and harmful (and despicable).

    If the DEP insists it has the power to overturn the decisions of the City Council, which any reasonable person should dispute, it should at least simultaneously (in the same rule) include additional safeguards to prevent overbroad idling exemptions, and provide an opportunity for public comment as to those additional safeguards.

    Comment added February 16, 2022 10:53am
  • Anonymous Posting of Official Letter from MCB4

    Please see attached official and unanimous letter from Manhattan Community Board 4 opposing this rulemaking (available at https://cbmanhattan.cityofnewyork.us/cb4/wp-content/uploads/sites/10/2022/02/21-New-Business-Letter-to-DEP-re-CHanges-to-Idling-Law.pdf)

    Comment attachment
    21-New-Business-Letter-to-DEP-re-CHanges-to-Idling-Law.pdf
    Comment added February 16, 2022 6:00pm
  • Eric E

    The DEP has clearly and publicly stated and admitted that the City Council’s statutory definition of “process” in turn defines “processing device” in 24-163.

    This can be readily verified by comparing

    (A) “A processing device is a device engaging in industrial, commercial, agricultural or other activity, operation, manufacture or treatment in which both (1) chemical, biological and/or physical properties of the material or materials are changed (or in which materials that are conveyed or stored in a non-mobile vented system without changing), and (2) air contaminants are emitted to the outdoor atmosphere.” from https://www1.nyc.gov/site/dep/environment/idling-citizens-air-complaint-program.page (attached); and

    (B) the City Council’s statutory definition that “‘Process’ means any industrial, commercial, agricultural or other activity, operation, manufacture or treatment in which chemical, biological and/or physical properties of the material or materials are changed, or in which the material(s) is conveyed or stored without changing the material(s) (where such conveyance or storage system is equipped with a vent(s) and is non-mobile), and which emits air contaminants to the outdoor atmosphere . . .” from https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCadmin/0-0-0-42992

    The DEP, an unelected, administrative body, is accordingly well aware that it is attempting, by this rule, to undo the specific legislative work of the City Council. As expressed in other comments, the DEP has no power to do so, and, indeed is well aware it has no power to do so. The DEP should immediately withdraw this clearly illegal attempt to overrule the will of the people, as clearly expressed through the people’s duly elected legislative body.

    Comment attachment
    Citizens-Air-Complaint-Program.pdf
    Comment added February 18, 2022 12:42pm
  • Michael M.

    I object to this proposed rule change, seeking to change the current definition of process – to include the following overbroad definition which would allow nearly anything to qualify for a process exemption: {“or other auxiliary equipment other than a heater or air conditioner”}

    The Department of Environmental Protection should seek to do what its name implies its mandate is. To protect the environment. Unnecessary vehicle idling is a leading cause of air pollution. Vehicle idling is directly responsible for many respiratory health problems up to and including death which disproportionately effects people of color and low income. Air pollution is directly contributing to climate change which is now a global crisis. NYC claims to be a leader in the fight against climate change. The DEP needs to reduce engine idling, not seek to make changes allowing companies to easily justify unnecessarily engine idling.

    This proposed change would make NYC an example of government agency making a change which is of no benefit to the public at large or the environment. Actually, making a change which only benefits corporate interests. Shame on the Dept of Environmental Protection for even making this proposal to make this rule change.

    Comment added February 28, 2022 11:26pm
  • Adrian Horczak

    I object to the proposed rule change. Idling laws for vehicles with internal combustion engines should be made as strict as possible, not more lenient as intended with the rule change. Air pollution is a public health issue and an environmental issue. The Department of Environmental protection should do what it’s name implies and protect the environment. If it proceeds with the rule change, then it’s name should change to the Department of Increasing Pollution to better match it’s true goals.

    Comment added March 2, 2022 7:42am
  • Senator Brad Hoylman

    Please find attached the comment of State Senator Brad Hoylman on the proposed rule change.

    Comment attachment
    Letter-on-Proposed-Rule-Change-on-Idling-1.pdf
    Comment added March 2, 2022 2:35pm
  • Anonymous Posting of Official Letter from Senator Hoylman

    Please see attached official letter from Senator Hoylman opposing this rulemaking and explaining DEP’s unconstitutional behavior.

    Comment attachment
    Letter-on-Proposed-Rule-Change-on-Idling-1-1.pdf
    Comment added March 2, 2022 3:34pm
  • Dietmar Detering

    Dear Commissioner Aggarwala and others:

    Thank you for the opportunity to voice my opposition to your proposed rule change at today’s public hearing. Please enter these written comments into the public record, as well.

    It is obvious that we citizen complainers are interested in this program because we want to combat idling. We think: The DEP should be interested in the same thing. However, the proposed rule is written in a way that defines definite exemptions from the law and then leaving space for more exceptions in its vagueness. It is specific in where idling is allowed and vague in when idling may or may not be allowed. It further adds a cargo/substance temperature control exception that is absent from the law. City Council already considered this language and rejected. Why is DEP proposing this? Is this an attempt to protect idlers against us, the citizen complainers, and the law? And should such a reversal of a City Council decision not be left to … the City Council?

    I do agree, however, that the process question is often disagreed upon between citizen complainers, DEP reviewers, operators, and OATH hearing officers. Where clarity can be improved, I am all for it. However, it should not dilute the law but instead strengthen it by way of making it clearer and removing friction and opacity. Manhattan Community Board has made a very good proposal which does an excellent job of defining processing devices that excuse idling:

    “an industrial lift, industrial crane, industrial pump, industrial drill, industrial hoist, or industrial mixer necessary to accomplish, and actually being used at the time of the idling to accomplish, the work for which the vehicle or equipment was designed, and having such a power consumption requirement as to be incapable of being powered by commercially available auxiliary equipment, including but not limited to a battery, backup battery, generator, or auxiliary engine.”

    Excused idling must power a process that depends on the powerful vehicle engine and cannot be powered by a smaller auxiliary device, such as a generator or battery. It also excludes any temperature control from accepted idling purposes, as appears was the intent of city council: Our streets are not warehouses for refrigerated or heated goods. When temperature control is needed, it is not an unusual hardship for businesses to rely on cooling/heating as provided by the engine when the vehicle is in motion, and to keep doors closed and stops short when not. Or, as explicitly encouraged by the city, operators can use self-powered temperature control units.

    Therefore, I encourage DEP to discard this proposed rule and adopt the one unanimously approved and submitted by Manhattan Community Board 4. Thank you!

    Sincerely,
    Dietmar Detering, PhD

    Comment attachment
    processing-rule-opposition-dietmar-detering.pdf
    Comment added March 2, 2022 4:15pm
  • AR

    If this rule is implemented then DEP will likely need to lay off some of it’s staff as there won’t be a need for idling violation reviews since no one will waste their time reporting idlers. And eventually DEP budget will get cut.

    Comment added March 2, 2022 11:06pm
  • Hersh K.

    I sincerely object to this proposal by DEP as it enables almost any idling vehicle to circumvent the laws which are designed to promote clean air protection to the city. On the contrary we need even more stringent policies to combat the increasing threat to global climate change.

    Comment added March 2, 2022 11:09pm

Comments are now closed.