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N.Y. judge strikes down retrofit ruling

Contractors and sub-contractors that have had the expensive prospect of retrofitting emission-control devices on their trucks have been granted a reprieve, thanks to a ruling by a New York State Supreme Court judge

Contractors and sub-contractors that have had the expensive prospect of retrofitting emission-control devices on their trucks have been granted a reprieve, thanks to a ruling by a New York State Supreme Court judge. Justice Donald A. Greenwood recently ruled in favor of Riccelli Enterprises Inc. in its suit against the New York State Dept. of Environmental Conservation (NYSDEC).

The ruling could have lasting impact not just in the Empire State, but across the country.

According to Greenwood, NYSDEC went too far in its initiative to require “emissions control devices” on any vehicle working on a state contract.

Riccelli, a Syracuse, NY-based hauler of everything from liquid asphalt to steel beams and a frequent contractor with the State of New York, challenged NYSDEC’s interpretation of a 2006 New York State green provision that grew out of the federal Diesel Emissions Reduction Act. That New York law mandated that all state-owned, heavy-duty vehicles or owners of vehicles working “on behalf of” the state had to retrofit their trucks to reduce diesel emissions.

The State was able to use federal DERA money to pay for the retrofits. But Riccelli argued that NYSDEC overstepped its authority I when it required all contractors, both prime and sub-contractors, working for the state to retrofit their vehicles.

“The defendants have failed to establish that there is a rational basis for expanding the definition of the phrase ‘on behalf of' beyond its well established meaning,” Greenwood wrote in his decision. “The plaintiff on the other hand, has established its entitlement to judgment on its claim that the regulations are ultra vires, in excess of the DEC’s jurisdiction and beyond the statutory delegation of its authority set forth by the Legislature due to the improper expansion of the meaning of the term ‘on behalf of' in the regulations.”

“The court has held that the New York State Legislature did not intend to have private contractors retrofit their trucks,” William Gilberti, lead attorney for Riccelli, told Fleet Owner.

Gilberti, of the law firm Gilberti, Stinziano, Heintz and Smith, estimated the cost to retrofit a single vehicle at between $15,000 and $20,000. According to Gilberti, under NYSDEC’s “interpretation,” Company X that supplied materials to Company Y who then used those materials in state work would be subject to retrofitting their vehicles, even if Company X did not know the final use of those materials.

“This is a landmark decision,” said Kendra Adams, executive director of the New York State Motor Truck Assn. “From the beginning we felt that the regulations extended much further than the original intent behind the legislation. NYSDEC took great liberties in their interpretation of the legislation and we are confident this decision will withstand any possible appeal.”

Colleen McCarthy, Associate Attorney, Office of the General Counsel of NYSDEC, told Fleet Owner the agency is “considering our options at this point, which includes an appeal.”

However, Gilberti contended that “we feel very strongly that any court that looks at the fact pattern will agree with industry that it was never the intention of the legislature” to force private contractors to retrofit their vehicles.

In his decision, Greenwood stated that the court believed the Legislature’s intent was not to retrofit every vehicle that was doing business with the state.

“Moreover, in addition to the inconsistency with the plain meaning of the statutorylanguage, the DECs interpretation of the term ‘on behalf of’ is in conflict with the

Legislature’s general approach to the diesel retrofit issue and with its specific approach when it chooses to impose a retrofit mandate on contractors and subcontractors. Only once in the narrow context limited to off-road vehicles working on a specific category of projects has the Legislature imposed a retrofit requirement on the private sector and specifically required contractors and subcontractors to retrofit all heavy duty diesel non-road vehicles used in lower Manhattan Redevelopment projects. As such, had the Legislature intended to use such explicit language here, it would have done so. The fact that it did not use such explicit language is evidence that its intent was otherwise,” the judge wrote.

Joe Rajkovacz, director of regulatory affairs for the Owner-Operator Independent Drivers Assn. (OOIDA), told the organization’s own LandLine magazine that the decision should be watched by other states.

“Many of these types of mandates under the guise of environmental issues are nothing more than veiled attempts to re-regulate the trucking industry – a point we’ve made in our petition to U.S. DOT on registries required by CARB and ports,” Rajkovacz said.

If the case is appealed, it will head to the New York Court of Appeals.

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