Covanta Hempstead violated state environmental law, DEC probe finds

Waste incinerator Covanta repeatedly violated state environmental law by dumping ash at Brookhaven landfill that didn’t match what it represented to regulators, state officials said Tuesday.

In a newly filed report, the Department of Environmental Conservation cited hundreds of violations at the Covanta Hempstead facility in Westbury — each representing individual truckloads of ash sent to the Yaphank landfill — over several years more than a decade ago. It follows an October Newsday investigation that found the facility long had disposed of ash it couldn’t be certain was nonhazardous, with employees acknowledging they were “lucky” regulators didn’t challenge them.

DEC Commissioner Basil Seggos on Tuesday called the violations of Covanta’s state-approved ash management plan, including the company changing how it loaded trucks without immediately telling the agency, “significant.”

But he was silent on a persistent but unproven concern of residents living near the Brookhaven landfill: whether the dump could have contributed to environmental pollution in surrounding communities.

“While we advance actions to hold Covanta accountable,” Seggos said in a statement, the “DEC continues to aggressively monitor this facility’s operations and respond to community concerns.”

The truckloads in question contained disproportionately high ratios of so-called “fly ash,” which may contain elevated levels of the toxic heavy metals lead and cadmium, and is supposed to be mixed with more-benign bottom ash to meet state thresholds to be considered nonhazardous waste.

If each environmental violation carries the maximum fine, Covanta would pay more than $4 million. A final penalty, however, will be negotiated in the coming months, DEC officials said.

New Jersey-based Covanta reacted to the DEC report by noting it changed the ash practices in question in 2014. It emphasized a state finding that just because some truckloads of ash couldn't be certified as nonhazardous does not mean that it was in fact hazardous.

The company said previous testing of liquids leaching from ash dumped at the landfill have failed to show elevated levels of lead or cadmium.

The DEC last year identified a plume of groundwater contaminated with the “forever chemicals” PFAS near the landfill and told Brookhaven Town officials to form a plan to address it, but assigned no blame for who may have contributed to it.

“The issues raised in the DEC report are focused on procedural discrepancies from more than a decade ago and do not call into question current practices or the health and safety of employees or residents,” Covanta spokeswoman Nicolle Robles said in a statement.

She noted that the DEC, citing internal company records, found that only about 5%, or 583 of 10,739, of truckloads recorded as being loaded for Brookhaven landfill between 2007 and 2008 and 2011 and 2013 constituted violations. Records for 2009 and 2010 weren't available.

Each truck loaded for the landfill contained roughly 80,000 pounds of ash. The 583 loads the DEC said constitute environmental violations contained at least 5% more “fly ash” by weight than Covanta's state-approved ratio called for. Nearly 250 of those truckloads contained more than 10%.

The DEC report also doesn't address findings of the Newsday investigation that the agency's own lax oversight might have contributed to potential ash violations.

Newsday cited private Covanta correspondence filed as exhibits in an ongoing lawsuit to report that the DEC overlooked the company dumping ash at the landfill during a period in 2007 when its samples failed toxicity testing; Covanta’s DEC monitor in 2014 omitting negative information from inspection reports; and the monitor appearing to tip off the company that it had a potential whistleblower.

DEC officials opened their initial investigation in 2021, years into the litigation filed by former Covanta Hempstead employee Patrick Fahey. Fahey alleged the company's ash practices constituted defrauding of the municipalities it contracts with to incinerate trash for energy. Covanta has denied the allegations.

There was little news about the probe until after the Newsday stories published last year, and residents called for state Attorney General Letitia James to investigate.

Shortly after the stories, James' office asked the court to delay decisions on pending motions in the case, citing the DEC investigation. It said it reserved the right to intervene in the case subject to the DEC findings.

A spokeswoman for James declined to comment late Tuesday.

David Hoffner, one of Fahey's attorneys, said in a statement they were “gratified” the DEC has determined Covanta committed numerous “serious” environmental violations.

“Our clients look forward to bringing their case to trial and making Covanta pay for its disregard of the law,” he said.

Robles, however, noted that the DEC report makes no mention of some of Fahey's central allegations, namely that some trucks were loaded with pure fly ash, or that the material could have blown into communities surrounding the landfill and contributed to air pollution. The DEC report states, generally, that Covanta adds moisture to its dry fly ash before it is readied for loading, and therefore, contains “adequate moisture content to ensure that they do not become airborne.”

“The report vindicates Covanta’s position in response to the lawsuit that prompted the DEC investigation,” Robles said.

Residents surrounding the landfill, primarily in North Bellport, which is majority Black and Latino, have complained about breathing and tasting ash that has blown from the landfill into their neighborhoods, and have worried about the potential impacts.

North Bellport has levels more than double the Suffolk County rate of adult emergency department visits for asthma, according to state Department of Health data. More than two dozen people have sued Brookhaven trying to tie the landfill to their cancers and other illnesses.

But no state agency has found widespread ash pollution from the Brookhaven landfill or a link from any landfill exposure to adverse health impacts.

Still, Citizens Campaign for the Environment Executive Director Adrienne Esposito, who has advocated on behalf of residents near the landfill for years, said the DEC's new findings show the impact of the agency not identifying the violations at the time.

“It illustrates why the DEC constantly needs to do their due diligence,” she said in an interview. “Fourteen years after the fact, it's very difficult to assess any environmental or public health impact. The goal is the prevent exposure rather than assess exposure.”

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.