Judge OKs $1M settlement between Brookhaven, waste-to-energy plant
The exterior of the Reworld waste-to-energy in Westbury. The plant formerly was called Covanta Hempstead.s Credit: Todd Maisel
A state Supreme Court judge on Friday approved a proposed $1 million settlement between Brookhaven Town and the operator of a waste-to-energy plant in Hempstead Town that removes Brookhaven as a plaintiff in the case.
The ruling stems from a whistleblower lawsuit filed by Patrick Fahey, a former employee of the former Covanta Hempstead plant who accused the operators of the incinerator/power plant of a decade of improper waste-handling practices.
Brookhaven and Hempstead towns, the Village of Garden City and LIPA were all named by Fahey as plaintiffs in the so-called qui tam lawsuit, which allows citizens to file claims on behalf of government entities over alleged fraud. The judge previously dismissed Garden City, Hempstead and LIPA from the case.
David Kovel, a lawyer for Fahey, didn’t respond to a phone call seeking comment.
The company this month separately settled an investigation by the state Department of Environmental Conservation that found hundreds of violations involving improper mixture of toxic fly ash and bottom ash at the facility by agreeing to pay a total of $878,500. Covanta is now called Reworld.
In her ruling Friday, state Supreme Court Judge Lisa Cairo said the Brookhaven settlement "meets the fair, adequate and reasonable standard" required for her approval. "Brookhaven has taken the position that it has suffered no False Claims Act injury from Covanta’s ash-handling practices years ago, and the settlement is adequate in light of the likelihood that a jury will find no injury," Cairo wrote.
Brookhaven Town spokesman Drew Scott, in an email, said, “After years of litigation, the Town of Brookhaven is pleased with the resolution of this matter and the justice’s decision.”
Lawyers for Fahey had argued that the $1 million is "far too low," Cairo noted, since Brookhaven could be entitled to treble damages if the town successfully pursued the claims. However, Cairo wrote, "Brookhaven has set forth a reasonable basis to settle this action in view of the distinct possibility that a jury would find no liability in favor of Brookhaven."
Residents who live near the landfill had opposed a settlement. Hillary Aidun, an attorney for Earthjustice, a legal nonprofit representing residents in the Brookhaven Landfill Action and Remediation Group, said residents were disappointed by the judge's decision.
"Brookhaven Town settled this case despite significant local objection," Aidun said Friday afternoon. "Ignoring the protests of people who live, work and go to school near the landfill is not fair, adequate or reasonable."
Aidun said the North Bellport community has "borne the burden of landfill pollution for half a century, and Covanta’s misconduct has created additional health risks."
Cairo noted that while the DEC found hundreds of violations "based on instances of fly-ash heavy loading and a change in the mixing ration (sic) without prior approval," she also concluded that "this finding does not mean that hazardous materials were in fact delivered to Brookhaven."
As Newsday reported last week, Reworld was ordered to pay $378,500 in penalties and another $500,000 to fund an "environmental benefit" project after an investigation found the facility violated state law and its operating permit. In its report, the DEC said it reviewed logs for 15,128 trucks loaded with the ash between 2006 and 2013, and found 601 were out of compliance by 5%. DEC also found 346 truckloads were 5% to 10% outside the proper ratio, and 255 truckloads more than 10% out of compliance.
Reworld has said it has addressed violations cited in the DEC investigation.
The lawsuit by Fahey remains in place and Cairo noted that "nothing in the proposed settlement prevents a personal injury plaintiff from bringing individual claims against Covanta."
A conference is set for March 19 concerning Fahey’s individual claims.
Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.
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