Former Covanta waste-to-energy employee who filed whistleblower case loses wrongful-termination lawsuit

After more than a decade of legal wrangling and at least two state investigations, a former employee’s case alleging retaliation after he reported years of toxic-waste mismanagement at the former Covanta waste-to-energy plant in Westbury ended last month in a verdict in favor of the company, court records show.

The case, brought in 2013 by former employee Patrick Fahey against Covanta, now known as Reworld, charged the company improperly combined waste ash for shipment to the Brookhaven Landfill from 2006 to 2014. While a state investigation launched by Gov. Kathy Hochul uncovered hundreds of instances of trucks carting improperly mixed ash, the court case last month centered on Fahey’s claim that the company fired him in retaliation for whistleblowing. A jury in State Supreme Court in Mineola on June 20 ultimately rejected that claim.

Fahey, who now lives in Westchester, had sought more than $3 million in lost compensation after his firing, which the company maintained was unrelated to his allegations against the company. Fahey’s 2013 lawsuit was also filed on behalf of New York State, the towns of Brookhaven and Hempstead, the Village of Garden City and LIPA, saying they’d each been wronged by the company’s alleged improper practices.

But State Supreme Court Justice Lisa Cairo ultimately dismissed the cases on behalf of LIPA, Hempstead and Garden City, and later approved a $1 million settlement between Reworld and Brookhaven Town. Lawyers for Fahey have appealed those decisions, and they remain pending with the state Appellate Division. The case at trial last month ultimately came down to whether the company knew of Fahey’s whistleblower actions when it fired him.

Reworld was "found not to have had knowledge of the plaintiff’s protected [whistleblowing] activity at the time [Covanta] took adverse employment action against him," the report filed in state court last week states, with the jury finding in favor of the company.

In a statement, Fahey’s attorney Manhattan-based David Hoffner said his client was "extremely disappointed by the verdict as he remains certain that Covanta (Reworld) knew about his whistleblowing activities and fired him in retaliation for such protected activity."

Fahey is "proud of his efforts which resulted in tremendous environmental improvement at the Covanta Hempstead facility and looks forward to prosecuting the appeal" of the court’s prior dismissal of claims he filed on behalf of LIPA, the Town of Hempstead and the Village of Garden City. The legal action, known as a "qui tam" lawsuit, allows citizens to file claims on behalf of government entities over alleged fraud.

The plant, Long Island's largest waste-to-energy facility with a stack visible from the Meadowbrook Parkway, incinerates more than 2,600 tons of primarily residential trash a day from Brookhaven and six other towns, and produces up to 650 tons of ash daily. The ash is shipped to the Town of Brookhaven's landfill. Other trash-to-energy facilities operate in Babylon, Huntington and Islip.

Fahey was fired from the company on Dec. 5, 2015, after he had been transferred to a different Covanta facility closer to his home two years after his 2013 lawsuit was filed under seal and the state attorney general looked into the allegations. The company maintained Fahey was let go because his boss believed he was distracted at his job. It has also said it had previously budgeted for projects to address problems raised in Fahey's suit.

Other questions have yet to be resolved, including legal expenses. A motion filed in court seeks recovery some $15.8 million in fees and legal costs tied to a false-claim portion of the case from 2016 onward, said Reed Super, one of Fahey’s attorneys, for "financial and other benefits provided to Brookhaven," including "helping prevent further environmental violations that would have impacted the landfill."

Last year, the state Department of Environmental Conservation reached a settlement with Reworld after an investigation of past records of trucks carrying ash from the plant to Brookhaven Landfill. The probe examined how Covanta mixed lighter "fly ash" with heavier "bottom ash" in light of rules intended to prevent fly ash, which may contain elevated levels of toxic material, from blowing into the community. The DEC found some 1,200 trucks between 2006 and 2013 were out of compliance.

The company, which noted the vast majority of its trucks (96%) were in compliance and did not admit wrongdoing, was ordered to pay $378,500 in penalties and another $500,000 to fund an environmental benefit project as part of the settlement. The company changed its practices at the Westbury facility in 2014, the DEC reported.

In a statement after the DEC’s report, Reworld noted the DEC "determined that 96% of the ash loads at issue were in compliance" and that the "identified noncompliance was focused on process and did not indicate a risk to health or safety." In addition, "almost all the trucks that were the subject of that consent decree were before Fahey even started working at the company," the official said.

But residents around the landfill remain unconvinced. Hillary Aidun, an attorney for environmental group Earthjustice, noted in an email Monday that Brookhaven Town "settled with Covanta over the protests of local residents who are the most harmed by landfill pollution, whose health and safety is threatened by Covanta’s misconduct."

The DEC launched the investigation at the urging of Hochul in 2021 following revelations in Newsday. A Newsday investigation in 2023 found engineers at the plant suspected for nearly a decade that ash practices were "risky, imprecise and contrary to what they represented" to the DEC.

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.