In January Couch White attorneys Adam Schultz and Alita Giuda (assisted by Maddie Goralski and Katie Birchenough) filed a lawsuit challenging DEC’s new Part 360 regulations. The suit was brought on behalf of a number of aggregate producers, asphalt manufacturers and road builders who rely upon the (old 360) BUDs for these materials which allow the reuse of recycled asphalt pavement (the most recycled product in the country) and recycled concrete aggregate, in place of virgin mined material, in road and other construction projects.
The new Part 360 made those programs unworkable and uneconomic. Worse, the new regulations also resulted in more material having to be landfilled, increased pollution, and would dramatically increase the cost of public infrastructure projects. The challenge also included causes of action that the new rules are also ultra vires, inconsistent with the State’s Solid Waste Management Plan, arbitrary and capricious on a number of grounds and violative of SEQRA and SAPA.
The Enforcement Discretion Letter allows the old program to remain in place and covers the materials, facilities and transporters involved in the use of these recycled products.