News, Articles & Alerts

Major Win in Diesel Retrofit Lawsuit

Posted Thursday, December 16, 2010 in News, Articles, All Alerts and Bulletins

We are happy to report that AGC NYS member Riccelli Enterprises, Inc.’s of Syracuse, NY and the Gilberti Law Firm have successfully challenged section 6 NYCRR Part 248– Diesel Retrofit (Riccelli Enterprises, Inc. v. NYSDEC, et al).  The result of the decision, in sum, was to annul DEC’s application of Part 248 to sub-contractors and material suppliers.  The judge ordered DEC to promulgate a new definition of “on behalf of” to include ONLY prime contractors and expressly begin EXCLUDING sub-contractors such as material suppliers. 

Although the state is likely to appeal the decision, as of now if you do not contract directly with the state, Part 248 no longer applies to you.  If you are a prime contractor and self perform work with vehicles that are covered by the regulation (there is a large set of equipment that is exempt), you may (see why MAY is bolded below) need to comply after a decision is made on another pending appeal on the Matter of New York Construction Materials Association, Inc. v. New York State Department of Environmental Conservation, et al, Case No. 510593. 

On Thursday, December 9, 2010 the NYS DEC issued a letter to the industry that stated they will not be enforcing the requirements of the Diesel Retrofit Law (6 NYCRR Part 248) until the courts render a decision on a pending appeal (Matter of New York Construction Materials Association, Inc. v. New York State Department of Environmental Conservation, et al, Case No. 510593).  The appeal is scheduled to be heard January 12, 2011.  The deferral of enforcement will be effective until ten days after the service of Notice of Entry of the Third Department decision is served on the parties.  The Notice of Entry may take weeks or even months to be finalized.  In the meantime, AGC NYS and many of their members will be fighting the law both legally and legislatively.  We will keep you attune to the details progress. 

There are a still a number of gray areas (e.g. salt delivery, VPP jobs, etc.) that need to be examined further.  More details will be forwarded as they become available.

If you have specific questions about how this decision may affect your business, the Gilberti Law Firm will be pleased to address them.  Contact Bill, Adam, Kevin Roe or Mike Fogel at the Gilberti Law Firm (315-442-0100).   

Staff contact: Brendan Manning

 

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