Diesel Emissions Reduction Act of 2006 Retrofit Requirements Clarified

The Appellate Division, Third Department recently decided an appeal in Matter of New York State Constr. Materials Assn., Inc. v New York State Dept. of Envtl. Conservation, 2011 NY Slip Op 03165, and unanimously overturned a lower court decision and found that the Department of Environmental Conservation exceeded its authority when issuing regulations to implement the Diesel Emissions Reduction Act of 2006 (DERA).  The Third Department found “nothing in the language of DERA . . . indicating that the Legislature intended it to extend beyond prime contractors.”

DERA required anyone who contracts directly or indirectly with state agencies or public authorities, including contractors, subcontractors, any contractors hired by a subcontractor, and suppliers, to utilize ultra low sulfur diesel fuel (ULSD) for covered heavy duty vehicles (HDVs) and use Best Available Retrofit Technology (BART) for covered HDVs according to a compliance schedule.  The end result would mean that anyone performing work or supplying materials in connection with state agency and public authority projects would need to install expensive diesel particulate fuel filtering devices.

The Third Department “conclude[d] that the Legislature did not intend to impose DERA’s requirements on vehicles other than those used by prime contractors under direct contract with state agencies and public authorities.”  However, the Court refused to allow additional time for compliance with DERA, so a contractor subject to DERA requirements must still meet the BART compliance deadline of December 31, 2012.

The full text of the Third Department’s decision is available here.

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