New state rules face challenge in curbing illegal dumping

Spurred by illegal dumping at Roberto Clemente Park in Brentwood, the state Department of Environmental Conservation enacted its first major overhaul of solid waste management regulations in more than 20 years.

Since early 2018, most New York City construction and demolition debris — like the 40,000 tons of contaminated material dumped at Clemente — now requires enhanced analysis from the facilities that process and reuse it, and enhanced tracking of the trucks that take it away.

Any load from the city larger than 10 cubic yards, roughly a quarter of a full commercial container, must be registered and detailed in a new log carried by drivers.

The DEC estimates that of the 7.3 million tons of construction and demolition debris, known as C&D, generated annually in the city, 635,000 tons (about 9 percent) is dumped illegally, much of it on Long Island.

Previous agency attempts to combat illegal dumping often lacked the tools to easily identify potential violators. Enforcement officers couldn’t immediately view paperwork that identified what the trucks were carrying and whether it could be reused as fill or needed to go to the types of disposal facilities, located off Long Island, that are permitted to handle toxic chemicals often found in soil excavated at city construction sites.

In many cases, that provided an opening for participants in alleged dumping schemes to deny knowingly brokering or transporting material containing these substances.

“I wouldn’t call the pre-regulation period any kind of a ‘Wild West’ scenario,” DEC Commissioner Basil Seggos said in an interview. “But certainly the regulations have been strengthened.”

Since the Clemente scheme was discovered in 2014, the DEC has launched multiple illegal dumping enforcement operations, including one throughout 2017 and 2018 that utilized a third of the department’s 288-member police force and resulted in more than 500 tickets issued statewide to 40 trucking companies, many of them on Long Island.

That effort dovetailed with the Suffolk district attorney’s “Operation Pay Dirt” case, leading to a joint announcement last summer on initial arrests. The subsequent Pay Dirt indictment from November leveled 130 counts on nearly 40 defendants, including a few with connections to firms or individuals that are also facing civil lawsuits for their role in the Clemente case, a Newsday investigation found.

In the Pay Dirt case, authorities allege a scheme in which a self-professed “dirt broker” posted online classified ads, soliciting customers who needed “clean” dirt fill for their properties. Recipients, however, received solid construction waste, some of it containing lead and diesel fuel.

“If we merely enact a set of regulations, that’s usually a good start, but if you don’t back it up with enforcement, it usually falls flat,” Seggos said.

The full slate of new regulations didn’t take effect until last May, and the DEC couldn’t provide details of how many violations were issued for acts that were previously difficult to track. Still, Seggos said, “we’re starting to see a significant understanding that the regs are in effect and we mean business.”

That doesn’t mean the road will be easy. Previous high-profile prosecutions, such as the Clemente case, resulted in only the actual dumpers serving jail time.

Earlier players in the dumping chain, such as construction contractors and waste brokers, typically blame the next party down the line for not disposing of contaminated solid waste legally, even when some of the entities lacked proper licenses or paid rates far below what is required for regulated landfills.

In another prominent case, the 2016 dumping of tons of construction debris at riding stables at the West Hills County Park in Melville, prosecutors entered into a plea agreement with three responsible parties that included virtually no penalties, other than to pay for and help clean up their mess.

Such outcomes are routine, experts say, because authorities often cannot show, to criminal law standards, that anyone but the actual person dumping the material knew it was hazardous or that it wouldn’t be handled properly.

“You need to prove a state of mind,” said James Rigano, a Melville attorney whose practice focuses on environmental issues. “That’s why these prosecutions are very, very uncommon.”

Because of those difficulties, prosecutors are increasingly turning to tactics more common in gang and narcotics investigations.

Operation Pay Dirt, for example, used wiretaps to bolster its allegations of a conspiracy among many parties. One defendant allegedly told someone in a recorded call that one of his associates had dumped "cancer" on a property.

But in the Clemente case, which was investigated after the fact, the actual transporters of the waste were the only ones in the chain of custody that were charged with and convicted of a crime and served jail time.

The construction contractors who generated the Clemente debris and the brokers who hired the transporters to take it away were not publicly identified until being named as defendants in two  continuing civil suits.

But even with the Pay Dirt wiretaps in hand, Suffolk District Attorney Timothy Sini said, illegal dumping cases remain a challenge.

The state for 15 years did nothing and now has ineffective regulations and claims they're confronted with disasters at every point.

Peter Sullivan, Manhattan attorney for company charged in Pay Dirt

He noted that the top count for some individuals in the case is second-degree criminal mischief, a property damage count that falls under the least serious class of felonies and often leads to little to no incarceration upon a conviction.

“That kind of sums up the problem,” Sini said. “This should be something that fits the exact scenario and carries stiffer penalties.”

The construction industry, however, argues that prosecutors have often overreached. And the DEC, they say, has adopted burdensome regulations, instead of addressing what they called imprecise rules that already existed.

“The state for 15 years did nothing and now has ineffective regulations and claims they’re confronted with disasters at every point,” said Peter Sullivan, a Manhattan attorney who represents the industry in regulatory matters and is defending a company charged in the Pay Dirt case.

Nancy Bartling, a Mineola criminal defense attorney who also represents clients charged in the Pay Dirt case, said the DEC is right to now require detailed tracking of construction materials being trucked from New York City.

But she disagrees with assuming that materials coming from the city present a clear toxic danger, pending the testing now required by their processing facilities.

“Just because something might have a screw in it, it should not be classified as contaminated, like something that has diesel fuel,” she said.

Others in the industry don’t see the new regulations as a major burden.

Stanley Lomangino, a managing member of Maggio Environmental Services, a Yaphank solid waste disposal firm that also operates a recycling center for construction debris, said he understands why the DEC would want to have each truck from the city arriving at a landfill to have a manifest.

He also doesn’t oppose DEC limits on the amount of tonnage handled at any given time by a transfer station or recycling facility.

“It's so much easier to just play by the rules, with whatever the DEC has out there,” Lomangino said. “At the end of the day, they're the ones that tell you whether you're in business or out of business.”

Though his Yaphank facility does not typically deal in construction waste from New York City — or anything containing hazardous substances — Lomangino said he has kept an eye on the high-profile dumping cases because they may impact his bottom line.

“You get one person that does it and everybody is slapped with that reputation,” he said. “The people doing it illegitimately have nothing to lose, but the people that are doing it legitimately have a lot to lose.”

Steve Changaris, northeast chapter director of the National Waste and Recycling Association, which represents nearly 700 companies, ranging from haulers to transfer station and landfill operators, said certain segments of the industry may be looking to cut corners, but he defended the overwhelming majority as “standing for doing it right.”

“Is it a choirboy industry? Is it an industry with negatives? We all have that,” he said. “But we do a pretty good job overall and we want to be good corporate citizens.”

Of the Long Island dumping cases, he added a punctuation: “It’s a big friggin’ black eye for everybody.”

Sini, however, said that for everyone in the industry  who acts lawfully, he believes financial motivations will continue driving others to skirt the new regulations and increased law enforcement attention.

“It’s not ‘Mission Accomplished,’ ” he said.

By Paul LaRocco

paul.larocco@newsday.com@paullarocco

Paul LaRocco is a reporter on the investigations desk. Since starting at Newsday in late 2010, he has also covered Nassau and Suffolk county politics and government and the Town of Oyster Bay.