Whistleblower suit alleges Covanta plant left trail of toxic ash

A former employee of Covanta’s waste-to-energy plant in Hempstead has alleged in a state whistleblower lawsuit that the company improperly mixed and disposed of toxic ash from the facility for nearly a decade starting in 2006, “rigged” test results to cover its tracks and left a trail of toxins from Hempstead to the Brookhaven landfill, according to court documents.

In addition, according to the most recent version of the suit filed May 20, the company used toxic ash-contaminated stormwater in a cooling system that emitted "ash and other byproducts of the incineration process from its cooling towers” to the Hempstead community around the plant. It alleges the company “deceived” regulators and a U.S. senator who brought attention to white dust settling in the air and on cars around the plant at the time by calling it mist and “calcium."

Covanta spokesman James Regan denied the claims, saying the company has “thoroughly investigated all of the allegations” of the former employee and “found them to be meritless.” Regan also denied that the white dust widely reported and investigated in 2014 was toxic ash. He said the company plans to “vigorously defend” itself against the claims, which were initially filed under seal in 2013.

“We believe this is an intimidation case and we will not be intimidated,” Regan said, adding that the plant is “highly regulated” with state Department of Environmental Conservation staff on site to monitor and test. “We have great oversight over the facility from state regulators,” he said. “We’ve never even received a notice of violation.”

A DEC spokeswoman declined to comment citing "pending litigation." The state attorney general’s office, which the suit said has investigated the claims, did not comment.

In a motion to dismiss filed by the company, Covanta noted that the attorney general's office "notified the court of its decision not to participate" in the case. It also notes that regulators at the DEC "were fully aware of, and had affirmatively approved years earlier, the practices plaintiffs allege were nefariously covered up." 

The whistleblower is former Covanta maintenance planner Patrick Fahey, who was fired by the company in November 2015, after four years at the facility. In addition to Fahey and his company, EPR Corp., the suit was filed on behalf of the State of New York, the Towns of Brookhaven and Hempstead, LIPA, and the Village of Garden City. The municipal plaintiffs are not active participants in the case but would benefit from any final financial award, if any.

Fahey claims he was unlawfully fired for blowing the whistle on the alleged violations, a claim the company denies. 

Earlier this month, state Supreme Court Justice Sharon M.J. Gianelli allowed the whistleblower to formally file a third amended complaint in the case that cites company documents in alleging the practices occurred as far back as 2006. That complaint was filed in state Supreme Court in Mineola on Monday. 

It alleges Fahey witnessed “egregious violations” at the plant shortly after his hiring in 2011. Covanta was obligated under state law to mix lighter fly ash, which has a higher concentrations of toxins, with heavier bottom ash at a specific ratio to prevent metals from leaching into groundwater and the lighter material from dispersing toxins into the air when handled, transported and dumped at the landfill, according to Reed Super, a lawyer for Fahey.

According to the complaint, Covanta since 2006 “has been knowingly or recklessly violating its ash management obligations and, to cover up such fraud … fabricating in a laboratory and testing a ‘sample’ of ash it knew was not representative of ash leaving the facility.” All of the ash went to the Brookhaven landfill under a trash-to-ash agreement with the plant. 

The Covanta Hempstead plant takes in around 2,800 tons of trash a day, including nearly all the residential waste of Brookhaven and Hempstead Towns, producing between 500 tons to 750 tons of ash per day, the suit says. The ash contains heavy metals such as mercury, cadmium and lead, as well as the toxins dioxin, furans and polycyclic aromatic hydrocarbons — “all of which pose a serious threat to human health if not adequately treated, handled and disposed of properly,” according to the suit.

Fahey’s complaint alleges he learned shortly after starting with the company that Covanta was “intentionally or recklessly ignoring its legal obligations to only transport mixed and combined ash,” at a proscribed 70-30 ratio of bottom-to-fly ash. The action allegedly led to the “transportation of hazardous waste to the Brookhaven Landfill,” the suit charges. 

Covanta denied it. “We would strongly take issue with any notion that anything was done illegally or not conforming with our permit,” Regan said. The plant has been in operation since 1989. Covanta took it over in 2005.

The suit claims Covanta is in "gross violation" of its contracts with Brookhaven Town and LIPA, which buys energy from the plant. 

Brookhaven Town Attorney Annette Eaderesto said the town has attended meetings with state agencies, including the attorney general, reviewing the case since 2013.

“We have provided voluminous material for the plaintiffs for preparation of this case,” she said. “To ensure the safety of our workers and residents, a full-time New York State DEC monitor is on-site at the facility, where tests are continuously conducted on material, airborne particulate matter, gas and leachate.”

A LIPA spokesman declined to comment.

Town of Hempstead spokesman Mike Fricchione said the town was unable to comment on pending litigation “except to say that the health, safety and well-being of our residents is of the utmost importance.”

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

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