New State Rules Face Challenge in Curbing Illegal Dumping

The DEC now requires detailed tracking of construction and demolition debris leaving New York City in the wake of illegal dumping at Roberto Clemente Park.

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.

By Paul LaRocco [Newsday]