§ 31-47.3-5. Use of emission control technology in new public works contracts. (a) Effective upon passage of this legislation, the department of transportation (DOT) shall implement contract requirements specified in subsection (b) on at least one project to be out to bid no later than September 30, 2010. Performance of the project, if deemed practicable by the director of DOT, must be started no later than six (6) months after the project bid has been awarded. DOT shall provide a summary report of the results of the project, implementation of these provisions and any recommendations to the governor and the general assembly no later than sixty (60) days after project completion. In selecting the project, the DOT shall prioritize otherwise eligible projects that:

(1) Each have a total individual budget of no less than six million dollars ($6,000,000);

(2) Serve areas in Rhode Island:

(i) With highest population density; and/or

(ii) Exposed to a disproportionate amount of air pollution from diesel fleets.

(b) Beginning January 1, 2013, any solicitation for a public works contract or contracts with the state funded in whole or in part by federal monies and having a total project cost of at least five million dollars ($5,000,000), and any contract entered into as a result of such solicitation, shall include provisions requiring all heavy duty vehicles used in the performance of such contract to adhere to the following requirements:

(1) Subject to the provisions of subdivisions (2) through (4), onroad and nonroad heavy-duty diesel vehicles, including generators, shall be powered by engines with properly operating and maintained Level 3 controls. Provided, however, that if the department of environmental management (DEM) finds that no Level 3 verified emission control devices have been verified and are otherwise appropriate for use on particular engines, Level 2 verified devices shall be required; if neither Level 3 nor Level 2 devices have been verified and are otherwise appropriate for use on particular engines, Level 1 verified devices shall be required; and

(2) emission control technology requirements of subdivision (1) shall not apply to:

(i) Vehicles and equipment dedicated for snow removal;

(ii) Farm equipment;

(iii) Vehicles that are specially equipped and used for emergency response and vehicles that are used during a declared state of emergency and for the life of the project associated with the state of emergency;

(iv) Vehicles that are used to deliver equipment or material to and from the project site;

(v) Standby generators; and

(vi) Vehicles used on the project for less than thirty (30) total work days over the life of the project; and

(3) Unregulated, or pre-Tier 1 diesel engines are exempt from the requirements in subdivision (1). No later than December 1, 2011, DEM shall initiate a stakeholder process to determine how to reduce particulate emissions from unregulated, or pre-Tier 1 diesel engines, and how to create a statewide inventory of heavy duty diesel vehicles and how this inventory is published. The stakeholder process shall include representatives from industries that utilize pre-Tier 1 diesel engines. DEM shall report findings and recommendations from the stakeholder process to the governor and the general assembly no later than July 1, 2012; and

(4) Emission controls shall be required only to the extent of available reimbursement from project funds covering the equipment purchase and installation labor costs of the controls, provided that at least one percent (1%) of the total of each project budget shall be dedicated for such reimbursement.

(i) Funds shall be generally allocated to pay for the most cost-effective emission controls in terms of particulate pollution reduction per dollar spent.

(ii) Dedicated funds, subject to this subdivision (4), remaining after all eligible vehicles and equipment have been retrofit and reimbursement to contractors has been rendered subject to the provisions of this statute, may be considered part of the overall project budget as determined by the state.

(c) Implementation. The requirements of subsections (a) and (b) shall be implemented as specified by the state, and shall include the following:

(1) A blind bidding process;

(2) When project bids are awarded, the state shall notify the contractor in writing of the total budget for retrofits according to the provisions of subdivision (b)(4);

(3) Contractors must select vehicles and equipment to be retrofitted according to the requirements of subsection (b) within the budget specified by the state. Contractors shall give priority to retrofitting vehicles and equipment that:

(i) Will likely spend the most time operating on the project;

(ii) Will disproportionately expose the surrounding community and sensitive receptors including, but not limited to, hospitals, schools and residential neighborhoods to diesel pollution; and

(iii) Are most cost-effective in terms of emission controls for particulate pollution reduction per dollar spent.

(4) Construction shall not proceed until the contractor submits an equipment list of all heavy-duty vehicles to be used on site, in the format specified by the department of environmental management, including the following:

(i) Contractor and subcontractor names and addresses, plus contact person responsible for the vehicles and or equipment; and

(ii) Documentation, including the technology type, EPA/CARB verification number/control Level, manufacturer, make, model, serial number of the retrofit device; the date the retrofit was installed; or in the case of a delayed shipment for retrofit parts and/or equipment, proof of purchase and the expected ship date from the manufacturer, for the retrofitted vehicles to be used on the project; and

(5) Equipment, as further defined in subdivisions (c)(3) and (4), not meeting the requirements of this section shall not be used on the project site; provided, however, that:

(i) If the contractor can provide documentation demonstrating that a retrofit was ordered for noncompliant equipment, but not arrived yet, and that the failure to retrofit in a timely manner was caused by circumstances beyond the contractor's control, the noncompliant equipment may begin work on the project and operate on site for a maximum thirty (30) total work days or for additional time if authorized by the procuring agency.

(ii) If the contractor subsequently needs to bring on site equipment not on the equipment list specified in subdivision (4), the contractor shall submit written notification within forty-eight (48) hours to the procuring agency and the additional equipment shall be used on the project site for no more than thirty (30) total work days or for additional time if authorized by the procuring agency; provided that noncompliant equipment shall not be authorized for use more than three times during the life of the project.

(d) Reporting.

(1) The contractor shall submit monthly summary reports to the project manager, updating the equipment list, including diesel fuel use for the reporting time period for all equipment used in the performance of the contract. The addition or deletion of any equipment shall be included in the summary and noted in the monthly report.

(2) By December 1, 2013, and December 1 of each subsequent year through 2015, the state shall submit contractors' monthly summary reports, along with all inventory lists and equipment lists to DEM in the form requested.

(3) By February 1, 2013, and February 1 of each subsequent year through 2015, DEM shall create and submit a summary report to the legislature. The report will be made accessible to the public by posting on the DEM website.

(4) The report submitted by February 1, 2013 shall include:

(i) A description of the state's implementation of the new contract requirements;

(ii) An estimate of the resulting diesel emission reductions;

(iii) An estimate of the total population of heavy-duty diesel vehicles and equipment in the state;

(iv) An estimate of the total population of retrofitted heavy-duty diesel vehicles and equipment in the state;

(v) A description of other appropriate measures of progress;

(vi) A description of problems encountered and opportunities for additional reductions in diesel emissions; and

(vii) Recommendations for any statutory changes including but not limited to:

(A) The appropriate emissions control technology for specific vehicle groups;

(B) The types of projects that shall require emissions controls;

(C) The appropriate funding mechanism for continued implementation of the program;

(D) The reporting requirements necessary to track and number heavy duty vehicles in use, and the number of retrofits that are achieved under the program, and

(E) The appropriate enforcing agent for the program.

(5) DEM shall provide written notice and opportunity for a public meeting and comment on the draft of the report due February 1, 2013.

(e) DEM, DOT and other state agencies may promulgate regulations regarding the solicitation, bidding and awarding of public works projects as defined in subdivisions 31-47.3-5(b)(1), (b)(2), (c)(4), and (d)(1) and regarding enforcement as defined in § 31-47.3-6, provided that the scope of the rulemaking authority granted hereunder shall be narrowly construed. No rule promulgated hereunder shall expand the scope of or impose more stringent limitations than those expressly set forth in this act.

(f) Funding.

(1) All costs associated with the purchase and installation by a contractor of the emission control technologies for a specific project in order to comply with the contract provisions required by subsections (a) and (b) shall be fully reimbursed from project funds within sixty (60) days of the technology installation; provided that the compliant control technology is installed within thirty (30) work days after the applicable vehicle is brought onto the project site unless it meets the requirements provided in subdivision (c)(5).

(2) Retrofits installed with funds from the project shall remain on the heavy-duty diesel vehicle for the useful life of the emission control device or the vehicle or in the event the vehicle is sold out-of-state the retrofit technology may be removed at the contractor's expense and used on a piece of equipment that performs work within Rhode Island no later than one year from the date it was removed from the original equipment.

(g) Public education. Any project that is subject to public hearing requirements shall include at a minimum an overview of the diesel abatement strategies for the project as part of the public hearing presentation.

History of Section. (P.L. 2010, ch. 171, § 1; P.L. 2010, ch. 184, § 1.)