The Brookhaven landfill looking south near Horseblock Road in Yaphank...

The Brookhaven landfill looking south near Horseblock Road in Yaphank on Aug. 8, 2023. Credit: Newsday/Steve Pfost

Waste incinerator Covanta would pay Brookhaven $1 million to settle a whistleblower’s lawsuit alleging the company trucked hazardous ash to the town landfill, a proposed deal the whistleblower blasted as “paltry” and community advocates called “shortsighted.”

Attorneys for Covanta and the town this week each filed motions in state Supreme Court in Nassau County seeking approval of an agreement reached on Monday. Neither party admits wrongdoing, including that the ash — which state regulators recently found didn’t meet environmental standards for several years — was actually hazardous.

If a judge signs off on the agreement, it would effectively end an unusual and complex case that has spanned more than a decade. Brookhaven didn't seek damages in the litigation but still stands to receive money.

The whistleblower, Patrick Fahey, a former Covanta Hempstead employee, filed suit in 2013 on behalf of local governments that sent municipal waste to the Westbury plant for incineration, including Brookhaven, which accepted the resulting ash at its Yaphank dump.

“The Town of Brookhaven has concluded that this action has never been … in the interest of … its residents,” the new settlement agreement states.

Residents surrounding the landfill, including the majority Black and Latino North Bellport, strongly disagree.

“The town of Brookhaven continues to fail the North Bellport and surrounding communities,” said Monique Fitzgerald, a North Bellport resident who helps lead Brookhaven Landfill Action and Remediation Group that advocates for full landfill closure and cleanup.

She noted that Covanta is a multibillion-dollar corporation yet will be absolved of any future financial responsibility should the area around Brookhaven landfill require pollution cleanups. “This agreement comes without any input from the community,” Fitzgerald said.

The landfill is slated to stop accepting construction debris at the end of this year, but town officials have yet to provide a firm timeline for halting ash dumping and permanently closing the facility.

Fahey had alleged Covanta Hempstead's way of mixing and loading ash constituted defrauding the municipalities it contracts with. Between 2007 and 2013, the makeup of ash the facility dumped at Brookhaven landfill didn’t consistently match what it represented to the state Department of Environmental Conservation, the agency concluded in February.

Then-DEC Commissioner Basil Seggos called the hundreds of violations the agency lodged against Covanta, each representing individual truckloads of ash sent to Brookhaven landfill, “significant.” The truckloads contained disproportionately high ratios of so-called “fly ash,” which may contain elevated levels of the toxic heavy metals lead and cadmium, and is supposed to be mixed with more benign bottom ash to meet state thresholds to be considered nonhazardous waste.

The DEC issued its findings shortly after a 2023 Newsday investigation found the company’s Westbury plant long had disposed of ash it couldn’t be certain was nonhazardous, with employees acknowledging they were “lucky” regulators didn’t challenge them. A plant manager was secretly recorded marveling at all the fly ash that blew from waste piles at Brookhaven landfill.

Covanta is negotiating a final penalty with the DEC, but has consistently denied that its practices caused any environmental harm. The DEC investigation noted that the way the company deviated from ash standards was “not predictive of whether hazardous ash was transported for disposal.”

In a statement to Newsday, New Jersey-based Covanta, which recently rebranded itself “Reworld,” said it and Brookhaven “have agreed to a settlement to end the expense and burden of this litigation that both parties have long agreed is without merit.”

Jack Krieger, a Brookhaven spokesman, told Newsday the town board authorized the town attorney to settle the case and no other action was needed. He declined to comment further.

“If the town settles for this amount, they are once again making shortsighted decisions with no input from the [neighboring] communities,” said Lynne Maher, a Brookhaven hamlet resident also involved in the citizen advocacy group.

As Newsday reported last year, after Fahey’s case was unsealed in 2017, Brookhaven consistently sided with Covanta, with whom it shared a profitable contract, over the whistleblower and community advocates who said the ash could have polluted the area around the landfill and caused significant damages.

Internal emails show that Covanta drafted a 2020 letter signed by then-town Supervisor Ed Romaine asking the state attorney general to dismiss the case. Suffolk voters elected Romaine county executive in November.

In 2021, Brookhaven initially backed an even smaller proposed settlement along with Hempstead Town and Garden City village, which also contract with Covanta. Brookhaven, however, reversed course after outcry from residents near the landfill.

Earlier this year, State Supreme Court Justice Lisa Cairo dismissed the part of Fahey’s lawsuit filed on behalf of Hempstead and Garden City.

David Kovel, one of Fahey's attorneys, said he would oppose the “ill-conceived” settlement on the grounds that Brookhaven doesn’t have standing to settle it. He said only the attorney general's office can take such action. The office said Thursday it is reviewing the agreement.

“Having been shamed once before into abandoning a sweetheart settlement with Covanta, the Town of Brookhaven is once again seeking to accept a paltry settlement, even though for years Covanta dumped ash at the landfill that it knew could not pass New York State environmental standards,” Kovel said. “It is astonishing that the Town of Brookhaven would sell out its citizens.”

Covanta accuses Fahey, who also has an active retaliation claim against the company, of bringing the fraud cases on behalf of local governments for his own financial gain. In court papers, Covanta said he previously tried to settle for $12 million, none of which would have gone to the municipalities.

Attorneys said it's too soon to know how much money Fahey is entitled to under this proposal.

Fahey's “time and effort in this litigation — despite knowing the town's position — was his own choice, and the government should not be forced to pay” continued legal costs despite wanting no involvement, Covanta attorneys wrote Tuesday.

Regardless of the amount, Citizens Campaign for the Environment Executive Director Adrienne Esposito said Brookhaven should use settlement funds to “benefit those that were placed in harm's way for potential exposure to contaminated ash.” For several years during the lawsuit period, Esposito and others complained about blowing ash and dust from the landfill.

“The community has requested comprehensive air quality testing for years,” Esposito said, “therefore, it would be ideal for Brookhaven to allocate a significant portion of those funds to a robust air quality testing program for communities surrounding the landfill.”

At least three lawsuits involving dozens of plaintiffs allege the landfill exposed them or their family members to toxic odors and chemicals. The plaintiffs largely worked at nearby Frank P. Long Intermediate School.

Last October, the mother of a 13-year-old boy who attended the school and died of non-Hodgkin's lymphoma sued the town, alleging its "negligence" contributed to his death. 

Brookhaven has denied the landfill is a cause of the plaintiffs' illnesses, and previous state Health Department investigations haven't established a link.

With Carl MacGowan

Waste incinerator Covanta would pay Brookhaven $1 million to settle a whistleblower’s lawsuit alleging the company trucked hazardous ash to the town landfill, a proposed deal the whistleblower blasted as “paltry” and community advocates called “shortsighted.”

Attorneys for Covanta and the town this week each filed motions in state Supreme Court in Nassau County seeking approval of an agreement reached on Monday. Neither party admits wrongdoing, including that the ash — which state regulators recently found didn’t meet environmental standards for several years — was actually hazardous.

If a judge signs off on the agreement, it would effectively end an unusual and complex case that has spanned more than a decade. Brookhaven didn't seek damages in the litigation but still stands to receive money.

The whistleblower, Patrick Fahey, a former Covanta Hempstead employee, filed suit in 2013 on behalf of local governments that sent municipal waste to the Westbury plant for incineration, including Brookhaven, which accepted the resulting ash at its Yaphank dump.

WHAT TO KNOW

  • Covanta and Brookhaven seek court approval of a settlement that would pay the town $1 million to end a whistleblower's lawsuit over ash the waste incinerator dumped at the town landfill
  • State regulators previously announced that Covanta had committed “multiple environmental violations” related to how it handled the ash
  • Residents surrounding the landfill and the whistleblower criticized the settlement as insufficient and done without community input

“The Town of Brookhaven has concluded that this action has never been … in the interest of … its residents,” the new settlement agreement states.

Residents surrounding the landfill, including the majority Black and Latino North Bellport, strongly disagree.

“The town of Brookhaven continues to fail the North Bellport and surrounding communities,” said Monique Fitzgerald, a North Bellport resident who helps lead Brookhaven Landfill Action and Remediation Group that advocates for full landfill closure and cleanup.

She noted that Covanta is a multibillion-dollar corporation yet will be absolved of any future financial responsibility should the area around Brookhaven landfill require pollution cleanups. “This agreement comes without any input from the community,” Fitzgerald said.

The landfill is slated to stop accepting construction debris at the end of this year, but town officials have yet to provide a firm timeline for halting ash dumping and permanently closing the facility.

'Significant' violations

Fahey had alleged Covanta Hempstead's way of mixing and loading ash constituted defrauding the municipalities it contracts with. Between 2007 and 2013, the makeup of ash the facility dumped at Brookhaven landfill didn’t consistently match what it represented to the state Department of Environmental Conservation, the agency concluded in February.

Then-DEC Commissioner Basil Seggos called the hundreds of violations the agency lodged against Covanta, each representing individual truckloads of ash sent to Brookhaven landfill, “significant.” The truckloads contained disproportionately high ratios of so-called “fly ash,” which may contain elevated levels of the toxic heavy metals lead and cadmium, and is supposed to be mixed with more benign bottom ash to meet state thresholds to be considered nonhazardous waste.

The DEC issued its findings shortly after a 2023 Newsday investigation found the company’s Westbury plant long had disposed of ash it couldn’t be certain was nonhazardous, with employees acknowledging they were “lucky” regulators didn’t challenge them. A plant manager was secretly recorded marveling at all the fly ash that blew from waste piles at Brookhaven landfill.

recommendedRecords: Staff said they were 'lucky' DEC didn't challenge possibly hazardous landfill ash

Covanta is negotiating a final penalty with the DEC, but has consistently denied that its practices caused any environmental harm. The DEC investigation noted that the way the company deviated from ash standards was “not predictive of whether hazardous ash was transported for disposal.”

In a statement to Newsday, New Jersey-based Covanta, which recently rebranded itself “Reworld,” said it and Brookhaven “have agreed to a settlement to end the expense and burden of this litigation that both parties have long agreed is without merit.”

Jack Krieger, a Brookhaven spokesman, told Newsday the town board authorized the town attorney to settle the case and no other action was needed. He declined to comment further.

“If the town settles for this amount, they are once again making shortsighted decisions with no input from the [neighboring] communities,” said Lynne Maher, a Brookhaven hamlet resident also involved in the citizen advocacy group.

Town sides with Covanta

As Newsday reported last year, after Fahey’s case was unsealed in 2017, Brookhaven consistently sided with Covanta, with whom it shared a profitable contract, over the whistleblower and community advocates who said the ash could have polluted the area around the landfill and caused significant damages.

Internal emails show that Covanta drafted a 2020 letter signed by then-town Supervisor Ed Romaine asking the state attorney general to dismiss the case. Suffolk voters elected Romaine county executive in November.

In 2021, Brookhaven initially backed an even smaller proposed settlement along with Hempstead Town and Garden City village, which also contract with Covanta. Brookhaven, however, reversed course after outcry from residents near the landfill.

Earlier this year, State Supreme Court Justice Lisa Cairo dismissed the part of Fahey’s lawsuit filed on behalf of Hempstead and Garden City.

David Kovel, one of Fahey's attorneys, said he would oppose the “ill-conceived” settlement on the grounds that Brookhaven doesn’t have standing to settle it. He said only the attorney general's office can take such action. The office said Thursday it is reviewing the agreement.

“Having been shamed once before into abandoning a sweetheart settlement with Covanta, the Town of Brookhaven is once again seeking to accept a paltry settlement, even though for years Covanta dumped ash at the landfill that it knew could not pass New York State environmental standards,” Kovel said. “It is astonishing that the Town of Brookhaven would sell out its citizens.”

Company questions whistleblower's motives

Covanta accuses Fahey, who also has an active retaliation claim against the company, of bringing the fraud cases on behalf of local governments for his own financial gain. In court papers, Covanta said he previously tried to settle for $12 million, none of which would have gone to the municipalities.

Attorneys said it's too soon to know how much money Fahey is entitled to under this proposal.

Fahey's “time and effort in this litigation — despite knowing the town's position — was his own choice, and the government should not be forced to pay” continued legal costs despite wanting no involvement, Covanta attorneys wrote Tuesday.

Regardless of the amount, Citizens Campaign for the Environment Executive Director Adrienne Esposito said Brookhaven should use settlement funds to “benefit those that were placed in harm's way for potential exposure to contaminated ash.” For several years during the lawsuit period, Esposito and others complained about blowing ash and dust from the landfill.

“The community has requested comprehensive air quality testing for years,” Esposito said, “therefore, it would be ideal for Brookhaven to allocate a significant portion of those funds to a robust air quality testing program for communities surrounding the landfill.”

At least three lawsuits involving dozens of plaintiffs allege the landfill exposed them or their family members to toxic odors and chemicals. The plaintiffs largely worked at nearby Frank P. Long Intermediate School.

Last October, the mother of a 13-year-old boy who attended the school and died of non-Hodgkin's lymphoma sued the town, alleging its "negligence" contributed to his death. 

Brookhaven has denied the landfill is a cause of the plaintiffs' illnesses, and previous state Health Department investigations haven't established a link.

With Carl MacGowan

Get the latest news and more great videos at NewsdayTV Credit: Newsday

Police ID victims in small plane crash ... What's next for Kamala Harris? . . . St. Rocco's preview . . . Get the latest news and more great videos at NewsdayTV

Get the latest news and more great videos at NewsdayTV Credit: Newsday

Police ID victims in small plane crash ... What's next for Kamala Harris? . . . St. Rocco's preview . . . Get the latest news and more great videos at NewsdayTV