Brookhaven sues state DEC over requirement to clean up toxic plumes at landfill, airport

Brookhaven Town is suing the state Department of Environmental Conservation, claiming that a state law enacted last year blocks the agency from requiring the town to clean up toxic plumes stemming from the town’s mammoth landfill and a town-owned airport in Shirley.

The town, in papers filed in October in State Supreme Court and updated last month, said a newly enacted section of the state environmental conservation law contains a "Municipal Exemption" provision that would bring to a halt separate state investigations of toxic plumes emanating from the landfill and Brookhaven Calabro Airport.

The lawsuit states the DEC "has no such authority" to order cleanup plans at the landfill and the airport, adding "whatever prior general regulatory authority the DEC may have previously possessed ... lapsed upon the enactment of the Municipal Exemption" last year.

Brookhaven Supervisor Dan Panico declined to comment on the lawsuit.

The DEC, in a Feb. 2 letter to the town's lawyers, said the municipal exemption cited by Brookhaven "does not apply" to the landfill and the airport but rather to "inactive hazardous waste sites" such as shuttered landfills. 

The DEC declined to provide additional comment.

The lawsuit was filed as the town seeks a five-year permit from the DEC to continue operating the landfill, which Brookhaven officials have said will close in about 2½ years when it is expected to run out of capacity. The landfill primarily buries ash from three Long Island waste-to-energy incinerators. The current operating permit expires in July. 

Adrienne Esposito, executive director of Citizens Campaign for the Environment in Farmingdale and a frequent critic of Brookhaven's landfill policy, said stripping the DEC of its regulatory authority would be a blow to efforts to clean up hazardous waste sites across the state. 

“It seems like Brookhaven is grabbing at straws and would be much better off if they simply got these plumes cleaned up," Esposito said. "I don’t know why they're going to court over something like this. It’s really not a good use of taxpayer money.”

In spite of the lawsuit, Brookhaven pledged in court papers to continue developing remediation plans for both the landfill and the airport. 

The town on Friday is hosting a DEC-mandated community meeting to discuss the landfill plume. The agency required the meeting as part of the plume cleanup plan. It will be held at 5 p.m. at Brookhaven Town Hall in Farmingville, according to an announcement mailed to residents who live within 1,000 feet of the plume.

“We think that ... [lawsuit] is a stretch of the law, and it would mean that there was no independent oversight or accountability with any municipality if DEC was not the regulating agency,” Esposito said Wednesday in a phone interview. She added that regulatory oversight is especially needed with the relatively recent discovery of toxic contaminants such as PFAS and PFOS in the Brookhaven landfill and at the airport.

The DEC last year ordered Brookhaven to draft a plume cleanup plan that is due May 1. The report must offer a plan to close the landfill among its cleanup options, the DEC said last year.

Calabro was added last year to the state Superfund list following the discovery of groundwater contaminated with toxic "forever chemicals" at the 600-acre site. The airport is used mostly by private small-craft operators and flight schools.

The letter announcing Friday's meeting says it will be preceded at 4 p.m. by a "walk thru exhibit" with tables staffed by the town, the Suffolk Department of Health Services and the Suffolk County Water Authority.

The meeting will include talks by Brookhaven solid waste commissioner Christine Fetten and other officials. Those presentations will be followed by a "listening session" at which residents will have the opportunity to comment, the letter said.

Check back for updates on this developing story.

By Carl MacGowan

carl.macgowan@newsday.comCarlMacGowan

Carl MacGowan is a Long Island native who covers Brookhaven Town after having previously covered Smithtown, Suffolk County courts and numerous spot news and feature stories over his 20-plus year career at Newsday.