Material Matters - Spring 2018 - 12

COUNSEL'S CORNER
By Adam Schultz and Alita Giuda
Couch White, LLP

NYMaterials Files Suit Challenging Part 360
ON JANUARY 22, 2018, NYMaterials
along with 6 of its member companies
(Callanan, Suit-Kote, Hanson, Gernatt,
Peckham and Dolomite) filed a combined
Article 78/Declaratory Judgment action
challenging DEC's enactment of comprehensive new solid waste regulations, commonly

Somehow, DEC has determined that RAP poses a potential
impact to the environment and requires regulation when
handled by the private sector. Yet, DEC's purported
concerns evaporate when the same material is handled in
the same manner by the public sector.

referred to as Part 360. The lawsuit was autho-

The accompanying illustration, which we

requirements of Part 361 apply (storage

rized by NYMaterials' Board of Directors after

made a part of the lawsuit, demonstrates the

limits, noise limits, inventory control,

a lengthy and careful analysis of new Part 360,

irrationality of Part 360.

tracking documentation, dust, odor and

which concluded that the new regulations

The Rule creates three different regulatory

vector control, etc.). Use of the same type

threatened to seriously impede, if not destroy,

pathways for how RAP is regulated once it has

of crushing and screening equipment used

New York's very successful Recycled Asphalt

been milled from a roadway. For this illustra-

at Facility A to process the asphalt millings

Pavement (RAP) and Recycled Concrete

tion, the roadway is a local town road.

Aggregate (RCA) recycling program.

*

Part 360, as adopted, is harmful to the
environment and threatens to cost the State's
taxpayers million upon millions of dollars

*

to landfill a usable commodity and replace it
with virgin-mined materials. We are confident

*

at Facility B requires DEC approval.

After the RAP is milled, it is placed into a

* If the haul truck instead takes the same

haul truck for transportation (see bottom

material to Facility C owned by the Town,

of RAP Figure #1).

there are no restrictions on how much

The haul truck can take the asphalt millings

material can be brought to the facility,

to either Facility A, B, or C.

how long the material may be kept at the

If the haul truck goes to Facility A where

facility, no operational requirements, no

that this was not DEC's intent, but it is quite an

the ACME Paving Company has an asphalt

noise limits, and no restriction on crushing

achievement nonetheless. As Bob Dylan said,

plant, it can deliver unlimited amounts

and screening the material using the same

"there is no success like failure, and failure is

of asphalt millings and leave them on the

type of equipment used at Facility B.

no success at all."
The new rules attempt to create a cradle

ground for up to 365 days.

*

In sum, the same material, with the same

The ACME Paving Company does not require

chemical and physical characteristics, from

to grave regulatory scheme for the manage-

any Part 360 approvals to run this operation

the same milling job, delivered by the same

ment and use of RAP/RCA. Unfortunately,

and because it is not regulated, there are no

haul truck, is regulated in substantially dif-

while different parts of the rule, read in iso-

operational restrictions (other than the time

ferent fashions based on nothing more than

lation, appear to make sense, when they are

limit) placed on the facility. Crushing and

where the truck driver delivers the material.

read together (as they must be), irreconcil-

screening of the asphalt millings is allowed

Somehow, DEC has determined that RAP

able inconsistencies and contradictions are

without DEC approval.

poses a potential impact to the environment

brought to light. These inconsistencies and

*

If the haul truck instead takes the same

and requires regulation when handled by the

contradictions, discussed below, leave the reg-

load of asphalt millings to Facility B where

private sector. Yet, DEC's purported concerns

ulated community without any clear picture

the ACME company has a C&D processing

evaporate when the same material is handled

of how to comply, and open the door to differ-

facility, only 500 tons of millings per day

in the same manner by the public sector.

ing interpretations and selective enforcement.

(on a weekly average) from all sources, are

In addition, reading new Part 360 as a
whole makes clear that DEC's varied ratio-

*

There are a number of additional issues

allowed to be delivered to this facility.

with Part 360 which were highlighted in the

At Facility B, the ACME company must

lawsuit. These include:

nales for different parts of the rule, and excep-

apply for and obtain a Part 360 registration

The Rule contains various time limitations

tions to the rule, also contradict one another.

to operate the facility, and the operating

which contradict each other. For example, in

12 Material Matters * Spring 2018



Table of Contents for the Digital Edition of Material Matters - Spring 2018

Chairman’s Message
President’s Report
Legislative Update
Counsel’s Corner
Membership Benefit
Member KUDOS
Work the Problem
2017 Asphalt Pavement Showcase Award Winners
One Company’s Efforts to Set up an Asphalt Plant
An Interview with NYSDOT’s Don Streeter
Residential Concrete
Welcome New Members
Material Matters - Spring 2018 - Intro
Material Matters - Spring 2018 - cover1
Material Matters - Spring 2018 - cover2
Material Matters - Spring 2018 - 3
Material Matters - Spring 2018 - 4
Material Matters - Spring 2018 - 5
Material Matters - Spring 2018 - 6
Material Matters - Spring 2018 - Chairman’s Message
Material Matters - Spring 2018 - 8
Material Matters - Spring 2018 - President’s Report
Material Matters - Spring 2018 - Legislative Update
Material Matters - Spring 2018 - 11
Material Matters - Spring 2018 - Counsel’s Corner
Material Matters - Spring 2018 - 13
Material Matters - Spring 2018 - 14
Material Matters - Spring 2018 - 15
Material Matters - Spring 2018 - 16
Material Matters - Spring 2018 - Membership Benefit
Material Matters - Spring 2018 - 18
Material Matters - Spring 2018 - Member KUDOS
Material Matters - Spring 2018 - 20
Material Matters - Spring 2018 - Work the Problem
Material Matters - Spring 2018 - 22
Material Matters - Spring 2018 - 23
Material Matters - Spring 2018 - 2017 Asphalt Pavement Showcase Award Winners
Material Matters - Spring 2018 - 25
Material Matters - Spring 2018 - One Company’s Efforts to Set up an Asphalt Plant
Material Matters - Spring 2018 - 27
Material Matters - Spring 2018 - An Interview with NYSDOT’s Don Streeter
Material Matters - Spring 2018 - 29
Material Matters - Spring 2018 - 30
Material Matters - Spring 2018 - 31
Material Matters - Spring 2018 - Residential Concrete
Material Matters - Spring 2018 - 33
Material Matters - Spring 2018 - 34
Material Matters - Spring 2018 - Welcome New Members
Material Matters - Spring 2018 - 36
Material Matters - Spring 2018 - 37
Material Matters - Spring 2018 - 38
Material Matters - Spring 2018 - cover3
Material Matters - Spring 2018 - cover4
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