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CLEMENTE PARKENVIRONMENTAL CRIMES

BY JENNIFER BARRIOSjennifer.barrios@newsday.com

Environmentalcrimes prosecu-tions — such as theongoing dumpingcase in Islip andBabylon — can

pose unique challenges.They range from the nature

of the offenses themselves to alack of resources within localdistrict attorneys’ offices forthe expensive investigations,legal experts say.

It’s often easier to nab al-leged polluters on traditionalwhite-collar crimes, such asfraud or falsifying businessrecords, instead of chargesunder the state’s environmen-tal conservation law, they said.And jail time can be rare in suc-cessful prosecutions, whilefines can pale compared withthe cost of repairing the envi-ronmental damage the crimeshave caused.

A special grand jury con-vened by Suffolk County Dis-trict Attorney Thomas Spotalast year returned a 32-count in-dictment in December againstsix men and four companies inconnection with dumping con-taminated fill at a park, a vacantlot and a development for re-turning war veterans in IslipTown, and a state-protectedwetlands area in Babylon Town.

All the defendants have plead-ed not guilty to the charges.

Such environmental cases

can be a challenge to prosecute,and to be successful takes dedi-cated resources, said RobertOwens, who was head of theNassau County district attor-ney’s unit for 21 years until 2010.

“It’s very, very expensive anddifficult to have an environmen-tal crime unit,” Owens said.“The main issue is sampling.”

Testing material to identifywhether it is hazardous ortoxic is an expense that can runinto the thousands of dollars —a cost local district attorneys’offices would have to put upand risk not getting back,Owens said.

In addition, parts of the state’senvironmental law are writtenlike drug laws — “the bigger thequantity, the bigger the crime,”said Michael Lesser, former as-sistant counsel in the state De-partment of Environmental Con-servation’s general counsel’s of-fice and chair-elect of the NewYork State Bar Association’s en-vironmental law section.

To prove a case, investiga-tors would have to “weigh andmeasure the quantity and vol-ume of what you’re sampling— and that’s not always practi-cal, especially if somebody’sdumped something off the sideof a mountain in the middle ofnowhere,” Lesser said.

Keeping environmentalcrime detectives fully trainedto investigate environmentalcrime scenes is vital.

One law enforcement sourcedescribes that process, which

includes training on samplingand handling chemicals andhazardous substances in addi-tion to the usual crime-scene in-vestigative techniques, as “CSIon steroids.”

“It takes a lot of time and un-derstanding of regulations, un-derstanding the laws and tak-ing traditional law enforce-ment techniques and applyingit to environmental crime, andthat’s where the failure is,” thesource said. “Nobody wishes todo that. It’s expensive, andthere’s a large learning curve.”

Suffolk’s prosecutionsFor many years, Suffolk —

along with Nassau andWestchester counties — was aleader in the state in pursuingenvironmental crimes, accord-ing to former prosecutors whoonce headed up Suffolk’s envi-ronmental crime bureau.

Commack attorney FrederickEisenbud, who was the bureau’sfirst leader, said that in the threeyears after its creation in 1984,he had more convictions “thanthe attorney general had in therest of the state combined.”

Linda Spahr, who headed thebureau from the late 1980s until2001, the year Spota was electeddistrict attorney, wrote in 1998of Suffolk’s dedication to root-ing out environmental crime.

“By 1989, Suffolk County wasresponsible for a full third of allcriminal hazardous-waste pros-ecutions being brought in theentire state of New York,” shewrote in a paper prepared foran international conference onenforcing environmental law.

The unit was made into itsown independent bureau in 1990

by then-District Attorney JamesCatterson, wrote Spahr, who de-clined to comment for this article.

The Suffolk district attor-ney’s environmental crime bu-reau had once been free-stand-ing, with five criminal investiga-tors and at least two full-timeprosecutors, one source said.

Spota’s spokesman RobertClifford said while the unit isnow under the economiccrimes bureau, it has devotedto it three assistant district at-torneys and four detectivestrained to handle hazardous

waste — with more investiga-tors and prosecutors added onextensive investigations, aswith the dumping case.

He said the office does notkeep stats on the number of envi-ronmental prosecutions it does.

But information from thestate Department of CriminalJustice Statistics, which keepsdata on arrests and arraign-ments of individuals — but notcorporations — in cases inwhich the top charge is a viola-tion of the state environmentallaw, shows Suffolk with 110

Authorities face litany of challengeswith cases such as illegal dumping

In Islandia, hazardous materials were found in the areasurrounding several homes dedicated to troops whowere returning from the wars in Iraq and Afghanistan.

Prosecutingpollutersisatoughtask

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such arrests and arraignmentsbetween 1995 and 2014.

Only New York City hadmore during that time, with 119.

The data show Nassau Coun-ty had a total of 25 in the sameperiod. But Shams Tarek, aspokesman for that county’s of-fice, said that number does notreflect the county’s true numberof environmental prosecutions.

He said there were 71 arrestson environmental prosecutionsin Nassau between 2006 and2009, for example, with sevenfelony convictions during that

time. Eight individuals re-ceived local jail sentences.

Classic penal lawProsecutors often find it easi-

er to rely on classic penal lawstatutes, not environmentalones, when confronted with apolluter — making it less likelythe top charge will be an envi-ronmental one.

In the Suffolk County dump-ing case, for example, the topcharge for all but two of the de-fendants was from the penallaw: criminal mischief in the

second degree, a D-felony. Theother two defendants face a topcharge of third-degree endan-gering public health, safety orthe environment, an E-felonyunder the state’s environmen-tal conservation law.

“We tend as state and localprosecutors to use our tradition-al bag of tricks — which are falsi-fying business records charges,offering a false instrument for fil-ing, larceny charges — those areour bread and butter,” said Mi-chael Mansfield, former QueensCounty executive assistant dis-

trict attorney and former headof New York City’s Business In-tegrity Commission. “And ifsomebody has dump tickets andthey’re falsifying the dump tick-ets, well, bang — you’ve got anE-felony. It’s a straightforwardeconomic crime, and much easi-er to prove.”

Scott Fein, a former criminalprosecutor in the Nassau Coun-ty district attorney’s office andpast chair of the state bar associ-ation’s subcommittee on envi-ronmental enforcement, saidclassic penal law charges alsocan be more digestible for juries.

“Juries tend to understandpenal crimes more quickly thanthe more arcane environmentaloffenses,” Fein said. “If you say,well, it’s one part per million,and then a defense attorneysays one part per million is theequivalent of one inch in threemiles, they wonder: Why arethey here for this?”

Owens said most of the envi-ronmental cases he prosecutedwere based, at least in part, onpaper evidence such as permitsor correspondence — evidencehe said was “critical” to a suc-cessful prosecution.

Others agreed.“The best record-keepers are

sometimes the ones that getprosecuted,” said Raymond V.Casey, a former Queens prose-cutor and expert on the solid-waste industry.

But the smaller the company,Mansfield said, the less likely apaper trail exists.

Jail time is rareWhile individual offenders

do often fear jail time, Owenssaid, it’s uncommon for a pollut-er to end up jailed for an envi-ronmental crime.

James Periconi, a former assis-tant New York State attorneygeneral in the environmentalprotection bureau, wrote in anAmerican Bar Association publi-cation in 2009, for instance, thatthere were “no jail cases in Suf-folk County in recent years” inenvironmental cases.

“Most of these defendantsare charged as corporationsand subject to fines and sanc-tions, and they pay the bill forthe cleanup of whatever proper-ty they despoiled,” Cliffordsaid, adding that individualswho are charged often do nothave criminal histories.

Eisenbud said polluters in Suf-folk took the environmental lawmore seriously in the 1980s aftertwo people were jailed on envi-ronmental crime convictions anda third paid a $350,000 penalty.

“Suddenly, the health depart-

ment sanitarians when they in-spected would say, ‘Either youcooperate or we’re referring it tothe DA,’ ” he said. “And suddenlypeople were listening to them.”

Sometimes prosecutors foundit difficult to get the courts toconsider environmental viola-tions similarly to other crimes.

“I had to persuade judgesthat even though these arewhite-collar people who nevergot into trouble in their lives,they’re not such good peoplebecause they created irrevers-ible damage,” Eisenbud said.

Even when a prosecution issuccessful and the polluterspay fines, those amounts canbe a fraction of the actual costof cleaning up the environmen-tal damage caused.

In one of the biggest environ-mental crimes prosecutions inQueens history, that county’sdistrict attorney’s office spentnearly two years investigatinga “fill-for-fields” scheme in Col-lege Point, culminating in twoindictments in 2001.

In that case, a nonprofitsports group contracted with acompany to build a sports com-plex on city-owned land forfree, with the company — Envi-ro-Fill — making a profit bycharging contractors a fee todump clean fill there.

Instead of the expectedearth, gravel and sand, the com-pany allowed the dumping ofasphalt, wood, metal drums,plumbing fixtures and pulver-ized construction and demoli-tion debris, then covered it allwith a thin layer of topsoil thateroded over time, according tocourt papers and Queens Dis-trict Attorney Richard Brown.

The investigation yielded a734-count indictment in May2001 against three men and threeof their corporations, and monthslater a 906-count indictmentagainst two more individuals andtheir company, Enviro-Fill.

Ultimately, the first threemen cooperated with the inves-tigation in exchange for eachpleading guilty to one environ-mental misdemeanor, and werefined a total of $250,000.

The individual controllingEnviro-Fill pleaded guilty in2003 to falsifying businessrecords and releasing morethan 70 cubic yards of solidwaste to the environment, andwas sentenced to 3 months injail and ordered to pay restitu-tion of $250,000 to the city.

But the cost to New York Cityto clean up the property and re-build the ballfields properly?

$16.5 million.With Sarah Crichton

Even when a prosecution is successful andthe polluters pay fines, those amounts canbe a fraction of the actual cost of cleaningup the environmental damage caused.

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Roberto Clemente Park, inthe Town of Islip, has beenclosed since May. TheSuffolk County districtattorney's office said lastyear that the site hadasbestos — contaminationlinked to two other sites.

And in Central Islip, the cost has not yet been determined for the cleanup of an area atIslip Avenue and Sage Street. ] Explore possible polluted sites on LI: newsday.com/data

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