September 18, 2024

Good afternoon, Chairman Gennaro and members of the Environmental Protection Committee. I am Rohit T. Aggarwala, Commissioner of the New York City Department of Environmental Protection (DEP). I am joined today by Julie Lubin, DEP’s Deputy Commissioner of Environmental Compliance. Julie oversees the Bureau of Environmental Compliance (BEC), which manages enforcement of the noise and air codes, including the citizen complaint programs. Until earlier this year, BEC was managed as part of our Bureau of Sustainability, but I made the decision to bring in a new Deputy Commissioner specifically focused on the agency’s air, noise, and asbestos work, reporting directly to me, to ensure that BEC receives the attention it deserves.

While today’s focus is on DEP's Citizen Complaint Programs, our main message is that writing tickets for idling is not as an end in itself, but rather is one tool to reach the goal to drive down vehicle emissions. While successful, the program has flaws, particularly in its failure to address pollution in many environmental justice (EJ) communities. With some edits we would like to discuss with the committee, we believe the combination of Intros 5, 291, and 941 can significantly improve the program’s impact on air pollution.

We collectively have made great progress on air pollution in New York City. Today, the main impact of air pollution is in EJ neighborhoods.

Mr. Chairman, you and I have worked together on this issue for nearly two decades. You have sponsored some of the most important air quality legislation, including the legislation that enabled DEP to phase out dirty heating oil—one of our most impactful local air quality initiatives.

New York City has made tremendous progress on air quality, driven largely by changes in both vehicle and building fuels, as mandated by federal and local legislation. Over the past 20 years, we’ve seen a 60% decline in PM2.5 and a 40% reduction in NO2, as found in research by the Department of Health and Mental Hygiene (DOHMH). The health impacts of these improvements have been clear: over that period, the number of asthma-related emergency room visits in NYC dropped by similar amounts.

This success is remarkable. Today, our air is cleaner than it has been since before the Civil War.

The DOHMH study also found that the bulk of this improvement stemmed from fuel quality requirements that were mandated federally for vehicles and locally for heating oil. In other words, we only saw real improvement when changes to equipment and fuels made it physically impossible to pollute. These mandates for mechanical or infrastructure improvements do much more than attempts to change behavior.

Today, the biggest impact of air pollution is on EJ neighborhoods. DOHMH found that the people who really suffer from air pollution are those who live in EJ neighborhoods like the South Bronx, Harlem, the North Shore of Staten Island, East New York, and Brownsville. The reality of pre-existing health conditions and reduced access to health care make air pollution a much greater threat in these neighborhoods compared to wealthier parts of the city.

The Adams Administration has implemented the City Council’s air quality laws and is pursuing a further agenda outlined in PlaNYC.

In this administration, we have worked to implement several air quality laws enacted by the City Council. We have accelerated the phase-out of No. 4 heating oil, pursuant to Local Law 32 of 2023. We have implemented the Local Law 38 of 2015 requirement to regulate emissions from restaurants with wood- or coal-burning ovens and are progressing on its requirement to regulate emissions from restaurants with char broilers. These rules have been controversial, but DEP and this administration are committed to improving air quality and public health. We appreciate the Council’s continued partnership in this.

We have been dedicated to reducing vehicle emissions. DCAS is aggressively electrifying the City’s vehicle fleet and the City recently won a $15 million federal grant from the U.S. Department of Transportation to build the nation’s largest curbside electric vehicle (EV) charging program. We have also embraced 100% renewable fuel for the City’s heavy-duty vehicles, and DEP’s new on-road diesel vehicles are all equipped with “idle shutdown” technology.

We are also focused on addressing the pollution caused by delivery trucks. As promised in PlaNYC and in the points of agreement related to City of Yes for Economic Opportunity, we are developing a proposal for an “indirect source rule” to reduce emissions from trucks going to and from warehouses, many of which are located in EJ communities. I look forward to speaking to you more about this proposal in the future.

The Adams Administration has worked hard to implement the Citizen Idling Complaint program.

A simple way to reduce vehicle emissions is to reduce idling. The Citizen Complaint Program is a useful tool in that overall effort. Pursuant to Local Law 58 of 2018, DEP has established a formal Citizen Air Complaint Program that invites civilians to report potential idling violations. Anyone can submit evidence of an idling violation (including a video and incident description) to DEP through our website.

These reports go to the Bureau of Environmental Compliance, under Deputy Commissioner Lubin. BEC inspectors review all of the submissions. If the inspectors determine that the evidence is sufficient, they issue a summons. DEP pursues the vast majority of complaints, which are those that we believe are valid and fully documented. Each of these is reviewed by a DEP air and noise inspector.

If the vehicle owner is found in violation at the subsequent Office of Administrative Trials and Hearings (OATH) hearing, the individual who submitted the evidence receives 25% of the collected fine. If DEP does not issue a summons, the person who submitted the evidence may decide to self-pursue the case at OATH, and is entitled to receive 50% of the collected fine if the self-pursued case leads to a violation.

The program has grown exponentially, with reports increasing from 9,000 in 2019 to over 80,000 in 2023. We have already surpassed 80,000 this year. In 2023, 95% of the cases DEP brought to OATH resulted in a violation.

This administration has invested resources in this program, including increasing the number of BEC staff to process these complaints. At my direction, BEC has also adopted automation processes that have accelerated processing times. Altogether, we have increased our processing capability by five times. However, the number of complaints submitted has gone up nearly ten times. As a result, our processing times have nearly doubled. We continue to pursue efficiencies in our processing, but the fact is that each video must be watched by one of our inspectors, which places a limit on how many we can process.

Several large companies have received many violations. Law Department has pursued the largest violators, reaching agreements with several of them that have resulted in millions of dollars of fines paid to the city.

One shortcoming of the current program is that it does not encourage mechanical solutions.

As I said earlier, our goal is not to issue more fines. Our goal is to reduce air pollution, so we must use the civilian complaint program and idling violations as a tool to do that. As this program has grown, we have found many shortcomings in its design, which we think these bills could help address.

The most important challenge is fundamentally that most trucks are designed precisely to keep the engine running. Air conditioning, heating, music, and other cab comfort functions turn off when the engine is off. Thus, a traditional vehicle forces the driver to choose between obeying the law and his or her own comfort.

The best solution to this problem is electrification. Electric trucks can idle all they want without producing emissions. Further, because most of a vehicle’s emissions are generated while it is driving, not while it is stationary, replacing one gas-powered vehicle with an EV has many times the benefits of stopping one vehicle from idling.

A second-best solution is retrofitting. Vehicles can be retrofitted with anti-idling devices. Some shut off the engine after a set amount of time and are installed with batteries that power features like air conditioning and lights. These start-stop devices reduce idling and prevent drivers from facing discomfort. This is a tangible, mechanical solution that would consistently address the problem. These devices do cost money: we estimate between $5,000 to $11,000, depending on the battery demand and complexity of installation, per truck to install both anti-idling technology and batteries providing for driver/passenger comfort. The civilian complaint program can be a tool to incentivize companies to install these devices.

Anti-Idling System Cost

We have used idling enforcement to encourage these kinds of improvements. Under the law, DEP has broad authority to grant waivers for idling. To date we have granted just one waiver—to a fleet that committed to electrifying half of its vehicles by the end of 2025. Last week, we issued three waivers conditional on the applicants’ electrifying or installing anti-idling devices. We believe the people of New York would benefit greatly if those companies accept those terms.

But it would be helpful for this program directly to incentivize truck owners to either electrify or install anti-idling devices. This is why the cure provision of Int. 941 is so important. The cure encourages vehicle owners to spend money on a mechanical change instead of a fine. It encourages the owners to actually address the issue.

The current program has almost no impact on many EJ neighborhoods.

A second problem with the current program is that it has essentially done nothing to improve air quality in many EJ communities. As these two maps show, most civilian complaints issued are in the Manhattan core, wealthier parts of Brooklyn, and western Queens. There is minimal attention to the areas that need it the most.

The deterrent effect of this program is mainly limited to trucks idling in Manhattan. In fact, because DEP’s air inspectors now spend so much time processing citizen complaints, which are mostly in Manhattan, an unintentional impact of this program has been to shift DEP’s own enforcement out of many EJ neighborhoods.

This is another way that a cure provision encouraging anti-idling devices would be impactful. Once installed, the device would be active wherever the truck goes, so a ticket issued in Manhattan could also improve air quality in the Bronx.

The existing law is vague and contains contradictions that have led to dismissals of what we believe are otherwise legitimate complaints.

Another problem is that the Air Code includes provisions that are imprecise or in conflict. As a result, when an OATH judge identifies a point where the law is vague or contradictory, a case is often dismissed. Many of the weak aspects of the law have only become clear as increased enforcement has brought more varieties of circumstances. The bills being heard today are an opportunity to address these issues and strengthen the law.

Issues include:

• Only vehicles with commercial plates are subject to the program, but many vehicles in commercial use do not have commercial plates; thus, the law today discourages owners from getting the commercial plates they should have.
• Obscured or altered license plates are a valid defense against a complaint; thus, the law today encourages drivers and owners to obscure or tamper with their license plates.
• Only one summons is allowed per vehicle per day in the same location, even hours apart.
• The fines increase for a second and third violation, but only on the same vehicle, not for multiple offenses from vehicles in the same fleet.
• There is no upper temperature limit dictating when a vehicle can idle for heat. In practice, this has meant that school buses can idle without limit by arguing that they were simply running the engine to manage internal air temperatures, even adjacent to a school.

We want to use the bills being heard today to resolve these issues. Addressing them would make the law clearer to follow and to enforce.

The existing program has enabled unprofessional behavior by a few participants.

A final shortcoming of the program today is that it has enabled unprofessional behavior by some participants. We should hold those who submit complaints to certain standards of professionalism and integrity.

The first issue relates to the timely submission of complaints. There is currently no time limit on how long a complaint can be filed after it is recorded. DEP’s inspectors are expected to report their complaints within nine days of observing the violation, though we typically do so within five days. It is important that civilian complainants be required to do the same. We’ve observed some complainants saving violations for months and then dumping them all at once. This is unfair to the accused and causes issues for DEP and OATH, which then have to process large volumes of complaints in bunches, slowing down the review process for all complainants.

The second issue is finding instances of fraud among some participants. Submitting false reports is wrong, and it wastes city resources and time. Our inspectors have found:

• The same video being submitted twice, with different allegations with the intent to generate two summonses based on the same event;
• A single complainant submitting videos from different boroughs allegedly taken at the same time; and
• Complainant resubmitting slightly altered evidence after DEP has already found it unacceptable.

To combat fraud, DEP has started issuing summonses to individuals who have committed this egregious behavior. We are not discouraging participation in this program. We are working to ensure that all participation is appropriate. In 2023, more than 900 people submitted at least one idling complaint; summonses were issued to four of them.

A further issue we’ve been experiencing is that some participants have harassed and verbally attacked civil servants. This behavior of complainants has included:

• Aggressive verbal harassment targeted at specific employees;
• Attempts to access secure government office spaces looking for specific individuals; and
• In one instance, an attempt to assault a staff member.

Such behavior is unacceptable. No one should feel threatened or tolerate abuse or harassment as part of their job. We need to protect our staff from the few individuals who feel they are justified in mistreating our employees.

In sum, civilian complainants should be held to a code of conduct to protect staff and ensure the integrity of the civilian complaint program. Withholding reports, submitting false reports, and harassing staff should not be permitted. If a DEP inspector were accused of any of these actions, we would take them off enforcement duty and investigate. We must recognize the role that civilian participants are playing. They are not just making complaints; they are contributing to the initiation of legal proceedings under the Air Code. There must be a method to address fraudulent submissions and abusive behavior.

The fines are not high enough to encourage the installation of anti-idling devices, but should not be increased unless other problems with the program are fixed.

I’ve mentioned already how powerful anti-idling devices could be in reducing idling, not only in Manhattan, but citywide. Today, levied fines—which range from $350 to $2,000—appear to be too low to incentivize mechanical change like the installation of anti-idling devices. This is why, in PlaNYC, the Adams Administration clearly stated its support for increasing the fines.

However, fines cannot be increased unless necessary reforms are put in place. The law must be more precise, must encourage cures, and must protect staff and the integrity of the system.

In addition, any fine increase must be coupled by a change in the bounty structure. Today, the payout for the civilian complainant is based on a percentage of the fine imposed. Fines start at $350 but can increase up to $2,000 for repeat offenses. We know from published reports that some participants are earning between $150,000 and $250,000 per year from this program. If the fine were quadrupled, it would mean that someone could earn a million dollars per year from this program. By contrast, the average salary of a DEP air inspector is roughly $55,000. While we can and should pay people who do the service of reporting offenses, we do not need to make them millionaires. I don’t believe any of the civilian enforcers are doing work that deserves more money than a trained DEP inspector earns. We suggest a flat rate payout for complainants. Today, complainants earn $87.50 for first offenses. Instead of quadrupling this, we suggest a flat rate payout of $100.

Intros. 5, 291, and 941, if amended and enacted together with some minor changes, would improve air quality in New York City.

This brings me to legislation being heard today. We fully support the intent of the four bills being heard today. We do want to recommend a few specific changes that we believe are consistent with the objectives of these bills and would further enhance the program.

Intro. 5

Intro. 5 requires that the citizen’s air complaint portal be translated into the designated citywide languages. We encourage New Yorkers of all backgrounds to participate in the complaint program. Currently, the portal has instructions and translations in all of the designated citywide languages. We welcome a discussion of ideas to encourage broader participation.

Intro. 941

Intro. 941 addresses many of the shortcomings of the current program that I have described. We have discussed the need for these changes at previous hearings and are grateful to the Chair for his leadership on this.

I’d particularly like to stress the importance of the cure provision this bill would create. This bill delivers on the idea that air quality, not fines or bounties, is the purpose behind this program. A truck that is retrofitted because of a summons issued in Manhattan will improve air quality everywhere it travels in the City.

Regarding the bounty, Intro. 941 cuts the current percentages in half. As I mentioned, we would recommend fixing the bounty at $100 for a DEP-pursued claim and $150 for a self-pursued claim. Intro. 941 also authorizes DEP to create a code of conduct for participation in the program. We think the bill language should be amended to reflect that a complainant for the same reasons a DEP Air and Noise inspector would be disciplined: submitting fraudulent or falsified evidence; abusing or harassing City staff; or intimidating, harassing, or threatening individuals in connection with a citizen complaint.

Intro. 291

Intro. 291 would raise fines for idling violations, which is consistent with this administration’s policy as stated in PlaNYC. In fact, we would like to propose raising the maximum even higher, to $10,000, for companies that receive significant numbers of repeat offenses in a year—companies like Verizon and Con Ed. This would require assigning repeat violations to companies instead of individual trucks. Additionally, as I noted earlier, we cannot support Intro. 291 unless other important changes to the program are addressed.

We ask the Council to consider these bills as a package to pass together.

Intro. 747

Intro. 747 extends some of these idling citizen complaint program changes to the noise citizen complaint program. Consistent with what I said about Intro. 941, we support the overall idea but would recommend changing the bill to establish a clear and high standard for discipline, and that the language of Intro. 747 should be brought into alignment with what is finalized in Intro. 941.

Conclusion

Both the genius and the challenge with the civilian complaint program is that it creates a clear financial incentive for people to issue complaints. More than 2,500 New Yorkers who have participated in the program since its inception. The vast majority seem to be driven largely by the desire to improve air quality. A small group, however, have turned this into “a lucrative side hustle” (as one participant stated in The New Yorker). I have no problem with people making money from doing the work to submit evidence of idling. But this law has created a lobby that has a direct financial stake in more summonses being issued, but not a direct financial stake in improving of air quality. I encourage you to treat these viewpoints with the same skepticism you would treat that of any lobbyist seeking to prevent the reform of a government program from which their client makes millions.

I want to reiterate my and my colleagues’ thanks to Chair Gennaro and the committee for your attention to these programs. I recognize that bills being heard today include many of the ideas that we discussed during the noise enforcement hearing last fall. The Council’s partnership on these is critical to maximizing the effectiveness of these citizen enforcement programs.

Thank you again for the opportunity to testify about these today. My colleagues and I are happy to answer any questions that you have.

Download the Idling Hearing Presentation