“Operation Pay Dirt” was a joint investigation by the Suffolk County District Attorney’s Office, the New York State Department of Environmental Conservation (NYSDEC), and the Suffolk County Police Department. It investigated illegal dumping on Long Island. Illegal dumping is of particular concern on Long Island because contaminants in dumped material can leach into the ground and adversely impact our sole source aquifer.
The joint investigation led to the appointment of a special grand jury. The grand jury indicted 30 individuals and 9 corporations for illegally disposing of solid waste at 24 locations on Long Island. All 39 defendants pleaded guilty. One of the individual defendants, referred to as the “dirt broker,” was sentenced to two to four years in state prison.
Also, the Suffolk County Special Grand Jury Report on Environmental Crimes was issued on August 2, 2019. In it, the grand jury explained the illegal dumping scheme and recommended new laws specifically aimed at punishing these environmental crimes.
The grand jury report highlighted the following:
- Solid waste is often associated with “industrial, municipal, commercial, institutional, mining, or agricultural operations or from residential activities” and can include hazardous and acutely hazardous materials.
- Construction and demolition debris (C&D), a type of solid waste, is often generated during residential, commercial and industrial construction, demolition, and renovation projects.
- Each day, thousands of cubic yards of C&D and other solid waste material are transported across the metropolitan New York region to facilities that are authorized to accept this material.
- Proper disposal of this material can be expensive – disposal fees for hazardous and acutely hazardous waste can exceed $1,000 per truckload (about 30 to 40 cubic yards).
The grand jury report explained the role of “dirt brokers” who steer C&D material, which can contain hazardous and acutely hazardous substances, to transfer stations and recycling facilities that are willing to skirt the rules in order to increase their profits. These unscrupulous facilities do not dispose of the material as required by law. Rather, they dilute the material by mixing it with dirt and work with the dirt brokers to get rid of the mixture, falsely claiming it is clean fill usable anywhere that general use fill can be used. Falsified manifests and dump tickets are used as part of the scheme.
The grand jury report noted that many home and business owners, as well as at least one school, were duped into accepting this material as clean or general use fill, but which actually contained C&D and hazardous and acutely hazardous material.
The grand jury indicated that the current Penal Law and Environmental Conservation Law (ECL) were inadequate to address the severity of the harm being done. It recommended several legislative and administrative actions to address the issue. These include:
- Forming an “Environmental Crimes Team” within district attorney offices to investigate and prosecute environmental crimes.
- Implementing new protocols to document the handling of solid waste and other material from the point of pickup to the point of final destination.
- Creating an alert system that would notify the NYSDEC of any site “that receives greater than a threshold number of truckloads of material within a 30-day period.” This would allow for rapid inspections of suspicious sites.
- Amending the New York State Penal Law to add specific environmental crimes to deter illegal dumping.
After the grand jury report was issued, New York State Senator Todd Kaminsky (D-9th) introduced a bill that would create multiple new environmental crimes to address illegal dumping. As of this writing, the bill, S6758, is currently in the Senate Codes Committee.
The proposed bill would amend the Penal Law to add crimes for illegal disposal. These range from criminal disposal in the fourth degree (class A misdemeanor) (disposal of solid waste); criminal disposal in the third degree (class E felony) (disposal of 10 cubic yards or more or 20,000 pounds or more of solid waste); criminal disposal in the second degree (class D felony) (disposal of 70 cubic yards or more or 140,000 pounds or more of solid waste); criminal disposal in the first degree (class C felony) (disposal of hazardous waste or reckless disposal of acutely hazardous waste); and aggravated criminal disposal (class B felony) (disposal of acutely hazardous waste). The proposed bill includes enhanced penalties where the conduct resulted in contamination of groundwater.
The proposed bill would create the crime of scheme to defraud by disposal of solid waste (class E felony). This requires a defendant to engage in a “systematic ongoing course of conduct with intent to defraud more than one person by disposing of solid waste . . . on such person’s property under false or fraudulent pretenses, representations, or promises, and, so damages the property of one or more of such persons.”
The proposed bill would create the crimes of criminal possession of solid waste in the second degree (class A misdemeanor); criminal possession of solid waste in the first degree (class D felony); criminal acceptance of solid waste or C&D (class A misdemeanor); criminal acceptance of a hazardous substance (class D felony); and criminal acceptance of an acutely hazardous substance (class C felony).
The proposed bill would add a new provision to the ECL that would require documentation of the movement of this material from the point of receipt to its point of final disposition. The proposed bill would criminalize making or causing a false waste tracking document or a false entry in a solid waste tracking document.
If the proposed bill is enacted, perhaps illegal dumping will be deterred in light of the significant increase in jail time and penalties proposed for these activities.