6NYCRR Part 360 Application for a Research, Development ... · PDF file6NYCRR Part 360 Application for a Research, Development and Demonstration Permit for ... Regional Permit Administrator

Proposed Furrows Rd. Industrial Property Municipal Solid Waste Transloading Facility

6NYCRRPart360ApplicationforaResearch,DevelopmentandDemonstrationPermitforGreenRailTransfer,Inc.&RailroadRealtyCorp.PreliminaryAssessmentoftheprojectthatisproposedtobeoperatedfromthefacilitiesat615FurrowsRd.Holbrook

December26,2016

SUMMARYPreparedprincipallyforresidentsofneighboringcommunitiesaswellaselectiverepresentativesandregulatoryagencyofficials. InadditiontoongoingcommercialactivitiesontheFurrowsRd. industrialproperties,theproposedprojecthaspotentialpublichealthimplications.Thisassessmentisintendedtoproviderelevantinformationtostakeholders.Itisnotintendedtoaccuseanyindividualorentityofwrongdoing but to disclose information that is publicly available, that is in the public interest andshouldbeconsideredinrelevantpublicpolicydebate.Itoffersopinions,impressionsandsuggestionsthatreadersshouldcarefullyconsiderandjudgeforthemselves.DEC Region 1 has extended the deadline for written public comments to January 17, 2017, andscheduledapublicforumattheRegion1officesontheStonyBrookUniversityCampusforJanuary4,2017.PublicrecordsthatareessentialtoanyinformedpublicdiscussionincludeDEC’sConsentOrderregarding themining and dumping of prohibited waste on the westernmost Furrows Rd. industrialparcelsandpermit-relateddocumentssubmittedtotheTownofIslipregardingtheproposedproject.ThoserecordsarenotpresentlyavailabletothepublicandmustbeobtainedthroughtheFOILprocess.Itwouldbeinappropriatetoconductthepublicforumorclosetheperiodofwrittenpubliccommentbefore interested parties have had the opportunity to examine those documents, as informedparticipationisnotpossiblewithoutthem.


Preliminary Assessment of DEC 6NYCRR Part 360 Application by GRT & RRC for a RD&D Permit 2

TableofContents

OVERVIEW 3

APPLICATIONTIMELINE 4PRINCIPALS 4PARTICULARS 5

POTENTIALAPPLICATIONDISCREPANCIES 7

1. Apparentfailuretodiscloserelevantcriminalhistoryofprincipalsandrelatedentities 72. Apparentfailuretodiscloserelatedbusinessentities 8

DUBIOUSBUSINESSINTERESTSOFTHEPRINCIPALSOFTHEPROPOSEDVENTURE 9

DUBIOUSBUSINESSACTIVITIESOFTHEPRINCIPALSOFTHEPROPOSEDVENTURE 10

1. Applicants’implicationandparticipationinbankruptcyproceedinginvolvingentities ostensiblyownedbytheirsons 102. EasternDistrictofNewYorklawsuit(CV-15-7013)thatallegesapplicants’declaredbusinessentitiesandundeclaredentitiesostensiblyownedbytheirsonsarealteregosandcommonentities 10 10

3. EasternDistrictofNewYorklawsuit(CV-15-5712)thatallegesapplicants’declaredbusinessentitiesandundeclaredentitiesostensiblyownedbytheirsonsarealteregosandcommonentities 11 10

4.2012CiardullotrustcivilactionSupremeCourtSuffolkCounty(IndexNo.007385/2012)thatallegesapplicantsunlawfullyminedandbackfilledFurrowsRd.parcelswithprohibitedwaste 11 11

5.Operatorconvictedofunlawfultrade-wasteindustryactivitiesandvehiclesnotproperlymarkeddumpingsolidwastematerialsontheFurrowsRd.parcels 13 13

6. 2005civilactionSupremeCourtNassauCounty(IndexNo.007536/2005)thatallegesvariousdefendantsover-excavatedmaterialsduringdevelopmentoftheHamletatWillowCreek,convertedsubstantialamountsoffill,solditfor$5millionunjustlyenrichingthemselves 14 14

7.December2005federalindictmentofapplicant,applicant’ssonandrelatedbusinessesthatledto2006convictionformailfraudforparticipationin“AsphaltCartel”bidriggingschemethatdefraudedSuffolkCountyandBrookhavenTownshipgovernments 14 14

8.1995civilactionEasternDistrictofNewYork(Case#:9:95cv-00913-NG)thatallegesdefendantsover-excavatedmaterialsduringdevelopmentoftheColonyatHolbrook,soldthefillforaprofitandbackfilledwithprohibitedwaste 15 14

9.OutdoorstorageofacresoftailingsfromtheboringofNYCity’s#3watertunnel 15REGULATIONANDMONITORINGOFTHECOMMERCIALBUSINESSACTIVITIESONTHEFURROWSRD.INDUSTRIALPROPERTIES 16

1.1993SuffolkCountyDepartmentofHealthServicesdenialofapplicationforawaiverfromArticle7oftheSuffolkCountySanitaryCode 16

2.1996DECgrantof“Registration”authorityforasolidwasteprocessingfacility 163.DECRegion1DirectorRayCowenrefusaltoregulatestorageoftailingsfromNYCwatertunnelboringsonthepropertiesandrefusaltoprovideairmonitoringrequestedbyColonyresidents.Subsequentanalysisanddiscrepanciesbetweenreports 17

4.July15,2016RequestofSenatorsBoyleandCrociandAssemblymanGrafforairmonitoringattheColonyandDECCommissionerBasilSeggos’sresponse 20

5.TownofIsliprefusaltoprovidepublicaccesstopublicrecordsregardingtheFurrowsRd.industrialparcels 20

SUMMARY 21



Overview

Various companies and corporations – including Pav-Co Asphalt and Prima Asphalt Concrete - that are controlled by various members of the Fehr family own approximately 18 contiguous acres of parcels that are zoned Industrial 1 on the north side of Furrows Rd. opposite the Colony. The site currently has a 1,500-foot long rail siding, a truck scale, roadways that can accommodate heavy trucks and dust and fire suppression apparatus to service existing industrial operations. Through their interests in Railroad Realty Corp. of 615 Furrows Rd., the Fehrs have partnered with Green Rail Transfer, Inc. (GRT) of 82 Glenwood Ave PO Box 4392 Queensbury, NY 12804 in a venture to provide a truck-to-rail-to-truck-to-landfill service that transports encapsulated solid waste materials from transfer stations on Long Island to landfills in Virginia. The project involves development of a “transloading” facility on the industrial property at 615 Furrows Rd. for the transfer of sealed solid waste from flatbed trucks to rail cars. The proposed project has the potential to advance the long-term objective of relieving regional roadways of heavy truck traffic. NYS DEC Regional Citizen Participation Specialist and New York Wildfire and Incident Management Academy Coordinator, Bill Fonda, advises that the application for a Research, Development and Demonstration (RD&D) Project will likely be approved for a period of one year by the NYS DEC Region 1 Office (Regional Director Carrie Meek Gallagher 631-444-0345; Regional Engineer Ajay Shah, P.E. 631-444-0375; and Regional Permit Administrator Roger Evans 631-444-0365). The initial period of one year will afford the applicants the opportunity to demonstrate to the DEC that their specific system of wrapping and bagging baled solid waste qualifies as an “acceptable container” for the transloading of solid waste. Applicant GRT proposes that its technology wraps solid waste bales in a pre-stretched biodegradable polyethylene film and, alternatively, encapsulates bales in bags of similar material with heat sealed seams that control odors, contain liquids and provide an effective barrier to vectors (vermin). If the initial year of operation is successful, the applicants will be entitled to apply for a 3-year permit. According to Mr. Fonda, the project application and approval process had no public notice requirement. Nonetheless, DEC did post the application (No. 1-4728-05596/00001) for Article 27 Title 7 Solid Waste Management Permit in the DEC’s November 9, 2016 Environmental Notice Bulletin. Mr. Fonda forwarded that information to the Town of Islip Commissioners and to the Brookhaven Town Commissioners whose districts are in proximity to the Furrows Rd site. According to Mr. Fonda, it would have been up to Region 1 Director Carrie Meek Gallagher to notify Suffolk County elected officials and it would have been up to DEC’s Albany Office to inform state-level elected officials. In response to inquiries from Colony residents, the DEC Region 1 Office has extended the deadline for submission of written comments to January 17, 2017. Comments are to be submitted to Regional Permit Administrator Roger Evans at 50 Circle Road, Stony Brook, NY 11790-3409. In response to inquiries by Colony residents, an opportunity for public comment has been scheduled for January 4, 2017 at 11:00 a.m. at DEC’s Region 1 facility at Stony Brook University at 50 Circle Rd., Stony Brook, NY 11790-3409. Mr. Fonda can be reached at 631-444-0350 and [email protected].



Application Timeline • May 2012: GRT initiated discussions with DEC’s central office. • December 18, 2012: GRT met with Region 1 staff in Stony Brook. • February 28, 2013: GRT submitted data and material samples to DEC and performed a

demonstration test of the transloading and rail movement from the Island Rail Terminal located at 80 Emjay Blvd. in Brentwood.

• June 2013: GRT submitted a summary report of the test move along with additional information.

• August 2013: GRT submitted supplemental information in response to DEC questions. • December 2013: GRT met with DEC central office staff and agreed to engage an

engineering firm to submit an expanded application with an Engineer’s report and drawings stamped by a New York State licensed professional engineer.

• April 2014: Cashin Associates, P.C. of Hauppauge submitted an application to Region 1 on behalf of GRT.

• June 2014: Revised application submitted. • December 2014: Revised application submitted. • June 2015: Revised application submitted. • October 2015: Revised application submitted (12 Sections, 22 Appendices). • November 9, 2016: DEC posted notice of Application ID: 1-4728-05596/00001 in its

Environmental Notice Bulletin November 9, 2016 Statewide and Multiregions that indicated in the “opportunity for public comment” section that comments on the subject were to be submitted in writing to no later than November 25, 2016. After giving the applicants more than 55 months to develop and submit its application, DEC limited notice to one agency bulletin and forwarding that bulletin to a handful of elected officials, and allowed a mere 16 days for “public” comment.

Principals

Green Rail Transfer, Inc. (GRT) Principals: • Michael Stephen Borgos, Esq. o Green Rail Transfer, Inc. President & Shareholder o Borgos & DelSignore, P.C. (Legal Services/Law Firm) – President & Shareholder o Glenwood Abstract, LLC (Title Insurance Agency) – Member o Bordel Properties, LLC (Real Estate Holding Company) - Member

• Louis A. Piccolo, CPA/MBA o Green Rail Transfer, Inc. - Treasurer & Shareholder o A.L. Picollo & Co., Inc. dba Piccolo Advisory (Business Consulting Services) – President

& Majority Shareholder Railroad Realty Corp. (RRC) Principals: • Ronald Fehr Sr. o Railroad Realty Corp. (Aggregate Sales) – Chief Executive Officer o Pav-Co Asphalt, Inc. (Construction) – Chief Executive Officer



o Pure Recycled Products, Inc. (Stone / C&D recycling plant – currently operating under DEC Registration authority; responsible for the huge mounds) – Chief Executive Officer

o C&B Leasing Corp.(Employee Leasing) – Chief Executive Officer o SMRB Holding Corp. (Rental Real Estate) – Chief Executive Officer o SBR Realty Corp. (Equipment Rental) – Chief Executive Officer o Pro-Go Corp. (Wholesale Propane Sales) – Chief Executive Officer

• William Fehr Sr. o FFMS Realty Corp – Chief Executive Officer o Center Yacht Club – Chief Executive Officer o Sealer Supply Co., Inc. (Construction) – Chief Executive Officer o Supreme Transit Concrete (Concrete Plant) – Chief Executive Officer

• Other Active Declared Business Entities In Which RRC Principals Have an Interest: o Prima Asphalt Concrete, Inc. (Asphalt Plant) o Tuthill Point Associates (Holding Company) o Railroad Realty Associates (Rental Real Estate) o 41 Pine Aire (Holding Company) o MRB Associates (Real Estate Holding Company) o Circle Associates (Real Estate Holding Company) o S & B 217 LLC (Rental Real Estate) o Asphalt Concrete (Asphalt Plant) o Real Realty Corp. (Aggregate Sales)

Particulars

Research, Development and Demonstration (RDD) Project Permit pursuant to NYCRR Part 360, Section 360.1.13.

• Develop a “transload” facility on a 0.5 acre plot of land adjacent to the existing siding track that services Prima Asphalt at the eastern side of the approximately 18-acre industrial facility that is headquartered at 615 Furrows Rd. Applicants to construct an elevated platform (25’ x 40’ x 6’) next to the siding track to facilitate the transfer of wrapped or bagged 1- to 2-ton bales of Solid Waste from flatbed trucks into gondola rail cars on the siding by means of a tracked vehicle with an articulating arm.

• The Solid Waste to be transported will be sourced and processed (baled, wrapped and bagged) at the following transfer stations: o Second Street Transfer Station owned and operated by National Waste Services, LLC dba

NWS of 9 Lincoln Ave. Bay Shore, NY. NYS DEC Permit No. 1-4728-00937/0004 exp. 10/30/18. Permit limit: 120 cubic yards per day of construction and demolition debris (C&D) and 60 cubic yards per day of commercial solid waste. The baler at the facility generates bales weighing 1 to 2 tons. NWS has an affiliation with Try Recycling Services (TRS). TRS operates a transfer station (TS) that has a capacity to generate 160 tons of Municipal Solid Waste (MSW) per day. TRS does not currently have a baler. No other information provided for TRS. Bales will be produced 6 days a week (Monday – Saturday). GRT has the wherewithal to increase capacity to 300 tons per day (TPD). ROUTE: Baled solid waste to be loaded onto flatbed trucks, transported to Sunrise Highway, east to Nicolls Rd., north to Furrows Rd. exit, and west directly into the facility



entrance where it will be weighed at the truck scale, then proceed to the platform at the rail siding where the bales will be transferred to waiting gondola rail cars.

o Maggio Environmental Services has a permitted 600 ton per day (TPD) construction and demolition debris (C&D) processing facility and a 500 TPD Municipal Solid Waste (MSW) transfer station (Permit #1-4722-0576/00001) located on Old Dock Rd. in Yaphank (precise address information not provided). The capacity of this facility at the initial phase of the project is estimated to be 250 – 300 TPD. ROUTE: Baled solid waste to be loaded onto flatbed trucks, transported to Horseblock Rd. west to the LIE, west to Nicolls Rd., south to Furrows Rd., and west directly into the facility entrance where it will be weighed at the truck scale, then proceed to the platform at the rail siding where the bales will be transferred to waiting gondola rail cars.

• Baled waste will be transported to the site 6 days per week, except major holidays. The facility will operate from 7 a.m. to 4 p.m. At the initial phase of the project, volume is estimated to be about 500 tons per day. Assuming an average bale weight of 1.5 tons, an average of 20 bales per truck, and a truck/bale weight of 30 tons, there will be an estimated 17 truck movements per day during the initial phase. At peak capacity of 900 tons per day, the number of truck movements per day is anticipated to rise to 30. Bales may not be stored at the transloading facility and can only be delivered if there are rail cars available for loading.

• Baled waste will be transferred from the flatbed trucks to the gondola rail cars by means of a tracked excavator with an articulating arm that is outfitted with a bale clamp. Per Section 7.2, it is anticipated that during the initial phase of the project that it will take approximately 8.3 hours to transfer the 500 tons of solid waste from the flatbed trucks to the gondola rail cars. This estimate assumes a time of 1 hour to load 1 train car with 1 excavator. That suggests that as many as 8 cars will be filled each day. That suggests that trains should not dwell for more than 2 days, with the exception of the Sunday break. This information is not entirely consistent with a subsequent assessment that the transfer stations can produce 250 bales per day, that 500 bales will be delivered to the facility every 2 days, and that the completion of the loading of the 10-car train will occur on the fifth day at which point it will be removed. Clarification of these assumptions would be helpful. It is anticipated that the 8.3 hours will be reduced to 7.5 hours as experience increases efficiency. It is anticipated that 2 excavators will be required to stay within the 7.5 hour time frame as volume reaches 900 tons per day.

• Applicants will lease no fewer than 50 standard 53’ and 63’ gondola freight rail cars with hard tops and have engaged New York and Atlantic Railway of Glendale as the originating freight rail carrier to haul the waste. The facility’s 1,500 foot siding has capacity for 80 rail cars. Space for as many as 20 rail cars will be reserved for this project. Two 5-car consists (a total of 10 cars) will be loaded with baled solid waste. Filled trains will be removed between 2 p.m. and 4 p.m. Empty train cars will be delivered in “the morning”.

• Logistics: New York and Atlantic Railway will transport the trains to Brooklyn where the cars will be offloaded to barges shipped to New Jersey where they will be returned to rail and transported to Virginia where the baled waste will be transferred to trucks for delivery to the destination landfills.

• The application provides noise, odor, dust, and fire control protocols. The facility reportedly

has sufficient apparatus. Additionally, the application provides spill protocols. Visibly damaged bales are not to be accepted but returned to the originating transfer station. Bales



that rupture or are otherwise compromised during the transfer process are to be immediately placed in a roll off container and returned to the originating transfer station. Personnel on site have the equipment to clean up any spillage, absorb and dispose of any liquid spillage and are to employ misters for odor control.

• Emergency Response / Emergency Coordinators o William Fehr, Rail Road Realty Corp. 615 Furrows Rd. 516-903-1010 o William Fehr, Jr. Rail Road Realty Corp. 615 Furrows Rd. 516-523-7573

• Local Police and Fire Departments o Town of Islip Fire Marshal 24 Nassau Avenue, Islip, NY 631-384-3473

• Government Response Agencies o Suffolk County Department of Health Services 631-854-2537 o Suffolk County Department of Fire, Rescue and Emergency Services 631-924-5252

Potential Application Discrepancies

1. Apparent failure to disclose relevant criminal history of principals and related entities Appendix 2 Records of Compliance Page 46. Record of Compliance – Permit Application Supplement Railroad Realty Corp. Federal Taxpayer ID Number 11-3128454. The form requests, in relevant part: 8. Has the applicant, and if the applicant is a corporation, has any officer, director, or large

stockholder (owner of 25 percent or more of not publicly-traded stock) of the corporation, within the last ten (10) years, been:

c. convicted of a criminal offense under the laws of any state or federal government agency, which involves environmental statutes or regulations or fraud, bribery, perjury, theft, or an offense against public administration as that term is used in Article 195 of the Penal Law, or an offense involving false written statements as those terms are defined in Article 175 of the Penal Law? Out-of state history may be limited to misdemeanors, felonies and civil penalties assessed at $25,000 or more.

� Yes !No

d. an officer, director or large stockholder (owner of 25% or more of not publicly-traded stock) of a corporation which – during the time such person was an officer, director or large stockholder – was convicted of a criminal offense under the laws of any state or federal government agency, which involves environmental statutes or regulations or fraud, bribery, perjury, theft, or an offense against public administration as that term is used in Article 195 of the Penal Law, or an offense involving false written statements as those terms are defined in Article 175 of the Penal Law? Out-of state history may be limited to misdemeanors, felonies and civil penalties assessed at $25,000 or more.

� Yes !No The NO boxes for 8 c. and 8 d. are checked providing apparently false attestation that no applicant director or corporation had been convicted of fraud or an offense involving false



written statements within the prior ten (10) years. The signature of Ronald Fehr, President (Railroad Realty Corp.) and the date 6/4/14 appear beneath those false attestations and directly above the caveat that expressly stipulates: “I hereby affirm that I am . . . authorized by that entity to make this application; that this application was prepared by me or under my supervision and direction; and that information provided on this form and attached statements and exhibits is true to the best of my knowledge and belief. I am aware that any false statement made herein is punishable as a Class A misdemeanor pursuant to Section 210.45 of the Penal Law.” On December 22, 2006, less than 7½ years prior to June 4, 2014, William Fehr, Sr., William Fehr, Jr., Pav-Co Asphalt, Inc., Prima Asphalt Concrete, Inc., and All-County Paving Corp. pled guilty to felony mail fraud charges stemming from their participation in a bid rigging scheme that the FBI termed an “asphalt cartel” and which defrauded Brookhaven Township and Suffolk County governments. As explained by the United States Attorney’s Office for the Eastern District of New York: “New York State law requires that public works projects be awarded in a competitive-bidding process to the lowest responsible bidder. Companies seeking to win contracts must certify that they have not colluded or shared information about their bids with potential competitors.” The mail fraud involved a conspiracy in which William Fehr, Sr., William Fehr, Jr., Prima Asphalt, Pav-Co, All-County Paving and others fraudulently rigged contracts with Suffolk County and Brookhaven Town that artificially inflated the cost of asphalt and defrauded those governments. William Fehr, Sr. reportedly pled guilty after convalescing from an illness.

As indicated at Section 2.2 Corporate Owners of Co-Applicants on Page 5 of the application, William Fehr Sr. is one of Applicant Railroad Realty Corp’s two shareholders. Record of Compliance, Supplemental Information Form requires, in relevant part: 4. Please note the names of all other companies that are owned or partly owned by the people

listed above*. Also list the companies that own or control or are related to the applicant company, all subsidiaries, parent companies, sister companies. Also include address and website address for these companies. Also include what each listed company does (ex: “solid waste transfer” or “cement plant” or “real estate holding co”).

The application form that was signed by Ronald Fehr listed 16 other business entities but failed to specify the nature of the relationship of those 16 entities to the applicants or Green Rail Transfer, Inc. or to provide addresses or e-mail addresses for any of them as requested. Four of those entities are not listed in available public records under the names provided in the application. 2. Apparent failure to disclose related business entities

a. Record of Compliance, Supplemental Information Form revised Marcy 17, 2011 requires: 3. Please list all owners/partners of the facility that is applying for the permit: (**)

** This form is applicable not only to the immediate entity but to other corporation,partnership,associationororganizationinwhichtheapplicantholdsorhasheldasubstantialinterestorinwhichithasactedasahighmanagerialagentordirectororanyotherindividual,corporation,partnershipororganizationwhichholdsasubstantialinterestorthepositionofhighmanagerialagentordirectorintheapplicant.



The form signed by Ronald Fehr for Railroad Realty Corp. identified only the following individuals:

• Ronald Fehr, Sr. • William Fehr, Jr.

Additionally, the Record of Compliance, Supplemental Information form requires: 4. “Please list the name of all other companies that are owned or partly owned by the

people listed above*. Also list companies that own or control or are related to the applicant company, all subsidiaries, parent companies, sister companies.”

In light of available public records and court records, it appears that the applicants might have failed to identify and disclose information regarding extensive related business entities. Public records reveal an additional 13 active entities whose registrations include the address of 615 Furrows Rd. that were not listed in the application. Of those, William Fehr Jr. is the CEO of three and Ronald Fehr is the CEO of one. Active Undeclared Business Entities with addresses at 615 Furrows Rd.: o Railroad Resources, Inc. – 615 Furrows Rd., William Fehr, Jr. CEO o Big Boy Leasing, Inc. - 615 Furrows Rd., William Fehr, Jr. CEO o All County Paving Corp. - 615 Furrows Rd., William Fehr, Jr. CEO o Granny Mill Associates, LLC.- 615 Furrows Rd. o Weeks Avenue Realty, LLC – 615 Furrows Rd. o RF Paving Corp. – Ralph Falkner CEO – 615 Furrows Rd. o FFP Holdings, LLC – Ronald Fehr CEO – 615 Furrows Rd. o Cash for Gold & Diamonds, Inc. – 615 Furrows Rd. o Pineaire Developing Co., LLC – 615 Furrows Rd. o Season’s Propane, Inc. – 615 Furrows Rd. o Freedom Holdings, LLC – 615 Furrows Rd. o John Powell & Associates, LLC – 615 Furrows Rd.

Public records reveal two additional active entities in which RRC principal William Fehr apparently holds an interest but were not identified in the application. Active Undeclared Business Entities In Which RRC Principals Have an Interest: o FFMS Realty Corp. – William Fehr CEO 222 Old Neck Rd. Center Moriches, NY 11934 o Center Yacht Club. – William Fehr CEO 222 Old Neck Rd. Center Moriches, NY 11934

Dubious Business Interests of the Principals of the Proposed Venture

1. Court records indicate extensive interconnectedness between undeclared business entities

of which Ronald Fehr, Jr., aka “Chip” Fehr, and William Fehr, Jr. are the titular principals and business entities of which Ronald Fehr, Sr. and William Fehr, Sr. are principals. Pleadings indicate that Prima Asphalt and Pav-Co are alter egos of entities ostensibly owned and controlled by Ronald Fehr, Jr. and William Fehr, Jr. and that various business entities that are headquartered at the 615 Furrows Rd. offices have common ownership, common principals, common officers, directors, bookkeeping and management, share assets/financing, similar lines of business and customers, common equipment and employees, and have centralized control of labor relations. It is noted that the Part 360 RD & D application identifies William Fehr, Jr. as an agent of Railroad Realty Corp. and designates him as an emergency response / emergency coordinator. Moreover, DEC has in



its possession several Required 6 NYCRR Part 360-16 Inspection Report – Construction and Demolition Debris Processing Facility Reports for Pure Recycled Products, Inc. Facility ID 52W41R that were executed by Ronald Fehr, Jr. as Facility Representative over no fewer than 10 years. DEC is also in possession of correspondence from Prima Asphalt Concrete, Inc. that identifies and is executed by Ronald Fehr, Jr. as Vice-President.

2. Federal bankruptcy records indicate a relationship between Ronald Fehr, Jr. and ten business entities, six of which share the address of 615 Furrows Rd. - including Prima Asphalt Concrete, Inc. William Fehr, Jr. is the CEO of no fewer than three of those entities. Active Business Entities Identified in Bankruptcy Proceeding of William Fehr, Jr. o Big Boy Leasing – William Fehr, Jr. CEO o Prima Asphalt Concrete o RF Paving Corp. o Pave-Co Industries Corp.- Dissolved June 29, 2016 o Signature Stone Masonry, Inc. o Granny Mill Associates, LLC o All County Paving Corp. o United Fence and Guardrail Corp. o Lost Ark Holding, LLC o Railroad Resources, Inc.

Dubious Business Activities of the Principals of the Proposed Venture

Public records indicate allegations that some Principals have engaged in a pattern of irresponsible and unlawful business practices spanning 4 decades that includes, but is not limited to, the improper handling and release of environmental contaminants ranging from road salt and fuel to tetrachlorethylene, friable particles of crystalline silica and asbestos; the unlawful clearing and mining of land; the unlawful disposal of solid wastes; and participation in elaborate schemes to defraud clients and county and local governments. 1. Within the last 13 months, the Bankruptcy Court of the Eastern District of New York

authorized a Bankruptcy Trustee to issue subpoenas to Ronald Fehr, Sr., William Fehr, Sr., Ronald Falkner and their related business entities for documents and examinations under oath in the matter of the Chapter 7 bankruptcy of Ronald Fehr, Jr. and William Fehr, Jr. (the junior Fehrs). The senior Fehrs filed a motion to quash the subpoenas. On November 17, 2016, the parties, including Ronald Fehr, Sr. and William Fehr, Sr. executed a Stipulation and Order in which Ronald Fehr, Sr. and William Fehr, Sr. agreed to remit settlement sums to the Trustee in full satisfaction of the underlying debt of the junior Fehrs. The November 17, 2016, stipulation and settlement nullifies an action in which the Trustee filed an adversarial proceeding alleging that debtors Ronald Fehr, Jr. and William Fehr, Jr. attempted to shield assets from creditors and failed to provide financial records, including business transactions of entities owned by Debtors and/or Debtors’ fathers and relatives – presumably Ronald Fehr, Sr. and William Fehr, Sr. and a creditor asserted various claims, including alter ego, pierce the veil, and other causes of action, against the senior Fehrs, Ralph Falkner and RF Paving Corp. Case No.: 8-14-75603-ast Ronald M. Fehr, Jr., a/k/a Chip Fehr, a/k/a Ronald Fehr; Robert L. Pryor, Chapter 7 Trustee Adv. Pro. No.: 8-15-08187-ast and Case No.: 8-14-75599-ast William L. Fehr, Jr.; Robert L. Pryor, Chapter 7 Trustee Adv. Pro. No.: 8-15-08188-ast in the Eastern District of New York.



2. On December 9, 2015, Trustees of Laborers Union Local No. 1298 of Nassau and Suffolk Counties Benefit Fund filed an action (Case 2:15-cv-07013-SJF-AYS; Civil Action No. CV-15-7013) against All County Paving Corp., RF Paving Corp., and Prima Asphalt Concrete, Inc. in the Eastern District of New York alleging the Defendants failed to make required fund payments of more than $500,000 in violation of a collective bargaining agreement and the Employee Retirement Income Security Act (ERISA). Notably, the suit alleges that All County and Prima Asphalt’s business operations are interrelated, that they share common ownership, officers, directors, management, that they share assets/finances, that they have a similar line of business and customers, that they share equipment and employees, that they share centralized control of labor relations, that they are a single employer and that Prima Asphalt is an alter ego of All County.

3. On October 2, 2015, Thomas Gesualdi, Louis Bisignano, Anthony DiAquila, Michael O’Toole, Michael C. Bourgal, Joseph A. Ferrara, Sr., Frank H Finkel, Marc Herbst, Denise Richardson and Thomas F. Corbett, as Trustees and Fiduciaries of the Local 282 Welfare Trust Fund, the Local 282 Pension Trust Fund, the Local 282 Annuity Trust Fund, the Local 282 Job Training Trust Fund, and the Local 282 Vacation and Sick Leave Trust Fund filed an action in the Eastern District of New York (Case 2:15-cv-05712-JFB-AKT) against Pav-Co Asphalt, Inc. that seeks recovery of more than $500,000 in contributions and payments that were not paid in violation of a collective bargaining agreement and the Employee Retirement Income Security Act (ERISA). Notably, the suit alleges that C & B Leasing and Pav-Co’s business operations are interrelated, that C & B Leasing, along with Pav-Co, is part of a group of trades or businesses “under common control”, that they share a bookkeeper and that C & B Leasing made payments to the fund – presumably for Pav-Co – with checks that were signed by Ronald Fehr.

4. On September 27, 2012, Trustees of the Joan Ciardullo Trust and the Executor of the Estate of Albert Ciardullo – owners of approximately 10 acres that adjoin the Fehr-owned parcels at their western boundary – filed an action in Supreme Court in Suffolk County (Index No. 007385/2012) against William Fehr, Sr.; William Fehr, Jr.; Prima Asphalt Concrete, Inc.; Lorraine Shero (reputedly the current or former wife of William Fehr, Jr.); and SMRB Holding Corp. The suit alleges that the Defendants entered upon the Ciardullo Properties, excavated and removed minerals, dumped large amounts of fill, laid a rough gravel road over a portion of the properties, and directed drainage onto the properties that severely damaged the property and rendered it unfit for use or sale for most purposes without costly remediation and re-grading. a. On August 12, 2012, William Fehr, Sr. executed a notarized certification of a verified

answer that included the following Affirmative Defenses: o “Plaintiffs’ causes of action are barred by the New York State Statute of Limitations.” o “Defendant denies that plaintiff is the owner of the land described in the complaint or

any part thereof.” o “Defendant denies each and every allegation contained in the complaint by which

plaintiff claims ownership of the real property described therein except defendant admits that portion of the complaint which alleges that defendant has claimed the right of ownership to said property.”

o “That during all the aforesaid period all of the said occupied and possessed premises have been occupied, improved and utilized by the defendant.”



b. In 2014, the parties settled the action. The settlement involved the transfer of ownership parcels between the parties. As of this writing, the Town of Islip has denied FOIL requests for access to those ownership records and to relevant permit application, permit, and enforcement history records.

c. A July 16, 2015, LI Business News article by David Winzelberg included a compelling photograph that depicted the stunning scale of the unlawful mining operation on those Ciardullo Furrows Rd. industrial parcels that ostensibly involved backfilling the massive voids with prohibited solid waste. The article reported on the dumping of tainted fill from New York City construction sites in Suffolk County and disclosed that a veteran Brookhaven-based truck driver reportedly admitted that he regularly picked up dirt, debris, and demolition wastes from New York City construct sites and possibly tainted fill from job sites in Manhattan and transfer stations in Queens and dumped it in several locations in Suffolk County, including the Furrows Rd. property. The gravity of that revelation is underscored by the fact that Pav-Co Asphalt, Inc. and C & B Leasing Corp. reportedly perform work within the five (5) boroughs of New York City in the excavating industry that is covered by Local 282’s New York City Heavy Construction & Excavating Agreement. The article indicated that investigators from the Town of Islip and DEC visited the site during the week of July 6, 2015 and obtained samples from the dumped material for testing (nearly 18 months ago).

d. On February 17, 2016, DEC issued a Notice of Violation to David Ciardullo and Roger B. Rothman as trustees of the Joan Ciardullo Trust; and Michael Ciardullo as executor of the Estate of Albert Ciardullo; Aghajan Eliassian 153 Peachtree Lane Roslyn Heights, NY 11577; and the following addresses (without identifying the particular recipients): • 145 S. 4th St. Bay Shore, NY 11706 [Deer Park Sand and Gravel] • 615 Furrows Rd. Holtsville, NY 11742 [The business address of the majority of the

business entities that are controlled by the Fehr family – including Co-Applicant Railroad Realty Corp.]

• 150 N. Boylan Lane Blue Point, NY11715 [Railroad Realty Corp. (RRC) Applicant; SMRB Holding Corp. (Ronald Fehr); SDDC, LLC (Lorraine Fehr); and SDDC II, LLC (Lorraine Fehr)]

The Notice of Violation identified the location of violations by the following tax map identification numbers: 0500 06800 0100 00800 [Agahajan Eliassian; 0.37 acre parcel] 0500 06800 0100 00900 [Ciardullo Trustee, Michael Ciardullo145 S. 4th St. Bay Shore;

0.11 acres] 0500 06800 0100 01000 [Estate of Albert Ciardullo; 1.95 acres] 0500 06800 0100 01100 [currently owned by D. Ciardullo & Rothman Trustee &

Michael Ciardullo previously owned by Lorraine Shero, wife/former wife of William Fehr, Jr.; 1.95 acres]

Affected parcels not specified in the Notice of Violation: 0500 06800 0100 013001 [Estate of Albert Ciardullo – 2.6 acres] 0500 06800 0100 014000 [Estate of Albert Ciardullo – 0.92 acres] 0500 06800 0100 015000 [SDDC, LLC 150 Boylan Ln. Blue Point – 1.62 acres] 0500 06800 0100 016000 [SDDC, LLC 150 Boylan Ln. Blue Point – 1.85 acres] 0500 06800 0100 018000 [SDDC, LLC 150 Boylan Ln. Blue Point – 1.85 acres]



NOTE: 150 N. BOYLAN LANE BLUE POINT, NY 11715 IS AN ADDRESS THAT IS SHARED BY APPLICANT RAILROAD REALTY CORP., RONALD FEHR CEO; SMRB HOLDING CORP., CEO RONALD FEHR; SDDC, LLC, CEO LORRAINE FEHR; AND SDDC II, LLC – NO OFFICER OR REGISTERED AGENT LISTED FOR SDDC II, LLC BUT DOS PROCESS IS TO PINKS, ARBEIT & NEMETH, ESQS. ATTORNEYS FOR THE FEHRS. THE CIARDULLO ACTION AND THE DEC NOTICE OF VIOLATION SUGGEST A LINK BETWEEN THE APPLICANT RAILROAD REALTY CORP. AND THE UNLAWFUL MINING AND DUMPING ON THE INDUSTRIAL PARCELS ON FURROWS RD. The Notice of Violation informs the two named and the three unnamed recipients that they are in violation of Articles 23 and 27 of the New York State Environmental Conservation Law and their implementing Codes, Rules and Regulations. The specific charges include prohibited mining of over 1,000 tons or 750 cubic yards of minerals within twelve successive months without a permit; the unpermitted operation of a solid waste management facility on the parcels without a permit; depositing solid waste fill deposited upon the parcels without a permit. Matter referred to the Office of General Counsel for legal action. Craig Elgut, Regional Attorney 631.444.0260. C. Meek Gallagher, Regional Director copied on the notice.

e. On July 13, 2016, Assemblyman Graf hosted a DEC presentation regarding the Furrows Rd. Industrial properties and the Fehr-controlled business activities that are conducted on those parcels. Regional Engineer Ajay Shah, P.E. reported that DEC is investigating unlawful mining, storage and disposal of fill material. According to Shah, DEC approved a work plan to characterize the backfilled material; the property owner will excavate test pits and drill borings for visual observation and chemical testing, and that all work will be conducted by DEC oversight. It is noted that Mr. Shah did not provide specifics as regards the particular parcels or their ownership. Mr. Shah reported that DEC was then in the process of issuing an Order on Consent to unspecified property owners for site investigation and remediation, that a site characterization work plan will be incorporated in the consent order, and that site remediation will depend on the results (visual and analytical) of the site investigation.

f. On December 20, 2016, DEC Regional Attorney Craig Elgut indicated that the unnamed recipients of the Notice of Violation (those who were only identified by address) are identified in a Consent Order that the involved parties have executed. That Consent Order is available for examination through the FOIL process. Significantly, Mr. Elgut advises that the analysis of the materials samples have yet to be completed. The Consent Order provides the relevant protocols and contains the relevant WHO WHAT WHEN WHERE WHY as regards the mining and dumping on the “Ciardullo” parcels and the ensuing remediation plan. Mr. Elgut also advises that the DEC Region 1 Office will be hosting a public forum at its offices on the Stony Brook University Campus on January 4, 2017 at 11:00 a.m. Given the apparent links between the Applicant Railroad Realty, Corp. and its principals and the as-of-yet unresolved illegal mining and dumping of the Ciardullo Furrows Rd. parcels, it is important that those who wish to attend the public forum have access to the Consent Order in advance in order that their participation thereat can be adequately informed.



5. On June 22, 2015, New York City’s Business Integrity Commission denied the application

of Landsource Container Service Inc. (BIC #4439) to operate a trade waste business "solely engaged in the removal of waste materials resulting from building demolition, construction, alteration or excavation," commonly known as construction and demolition debris, or "C & D" removal, in NYC because of Landsource principal’s participation in illegal and unregistered trade waste activities, that included blending non-residential “C & D” with municipal waste and dumping it in four Long Island Township dumps. Weeks later, a Landsource truck was photographed dumping what appeared to be “C & D” on huge mounds on the Furrows Rd. industrial parcels. Commercial trucks without markings or identification required by the NYS Vehicle and Traffic Law were contemporaneously observed and photographed dumping what appeared to be “C & D” on those parcels. Images of those vehicles were provided to the NYS Assembly Standing Committee on Environmental Conservation on December 16, 2015. The volume of solid waste materials on those parcels appears to have increased significantly in recent years. The Town of Islip refuses to provide access to public records that would specify the particular business activity(ies) that are permitted or otherwise authorized for each parcel (tax map identification number) on the Furrows Rd. properties.

6. On July 12, 2005, the Hamlet at Willow Creek brought an action against Pav-Co Asphalt, Inc., William Fehr, Northeast Land Development Corp., and others in Supreme Court in Nassau County (Index No. 007536/2005).

a. On July 1, 2002, The Hamlet entered into an agreement with Northeast Land Development to perform excavation work in the development the 177-unit property in accordance with the final engineering plan. Northeast subcontracted excavation work with Pav-Co. The Hamlet was authorized to remove approximately 1,650,000 cubic yards of excess fill from the development site. Defendants were required to pay the Town of Brookhaven Environmental Preservation Capital Reserve Fund fee. The agreement stipulated that the contractor was not to over-excavate any area. Plaintiffs allege that the Defendants over-excavated the construction site by 300,000 to 500,000 cubic yards of material, converted the alleged wrongfully removed excess fill and sold it to third parties for a an estimated $5,000,000 profit, unjustly enriching themselves, and that they failed to pay the Brookhaven Town fee per the terms of the agreement. The action alleges conversion, unjust enrichment and fraud.

b. On March 26, 2007, in a corollary action styled Fidelity and Deposit Company of Maryland against Prima Asphalt Concrete, Inc., Sealer Supply Co. Inc., Pure Recycled Products, Inc., SBR Realty Corporation, All County Paving Corp., Ronald Fehr, Northeast Land Improvement, Inc. and Zorn Industries, Inc., pursuant to the action, Supreme Court Justice Ira B. Warshawsky found that William Fehr, Pav-Co Asphalt, Inc. and Railroad Realty Associates failed to obey a lawfully-issued subpoena duces tecum and judicial subpoena and that such failure was calculated to, and actually did impair, impede and prejudice the defendants’ rights and remedies that constituted a contempt which is punishable by the court.

c. Judgments against the underlying claims were later reversed on appeal.



7. In December 2005, following an investigation by the FBI, a federal grand jury in the Eastern District of New York returned an indictment charging William Fehr, Sr., William Fehr, Jr., and their corporations Pav-Co Asphalt, Inc., Prima Asphalt, Inc., and All County Paving Corp. with conspiring to commit mail fraud in connection a bid rigging scheme against Suffolk County and the Town of Brookhaven. a. In May 2006, the grand jury returned a superseding indictment charging that the

defendant’s conspiracy began as early as 2003 and resulted in fraudulently rigging contracts with Suffolk County and Brookhaven Town valued at $2.3 million.

b. On December 22, 2006, the defendants pled guilty to federal mail fraud charges before United States Magistrate Judge William D. Wall at the U.S. Courthouse in Central Islip. The Defendants agreed to forfeit $2.3 million and pay $326,343.20 restitution to Suffolk County and Brookhaven Town.

8. On March 6, 2005, the Colony at Holbrook brought an action (Case #: 9:95 cv-00913-NG) in the Eastern District Court of New York against Strata G.C., Inc., Pav-Co Asphalt, Inc., Prima Asphalt Concrete, Inc., Deer Park Sand and Gravel and several other defendants claiming that the collective defendants acted in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961-1965 ("RICO"). Specifically, the plaintiffs alleged violations of 18 U.S.C. § 1962(c) & (d). They further asserted supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) for their state law claims of fraud and deceit, negligent misrepresentation, continuing trespass, continuing private and public nuisance, breach of contract, conversion, negligence, unjust enrichment, indemnity and restitution. Alleging civil Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy, mail fraud and wire fraud, and interstate transportation of stolen property, the plaintiffs allege: "Defendants, acting jointly and in concert[,] engaged in interstate transportation of stolen property in that they knowingly and intentionally transported soil and gravel knowing same to have been stolen, converted, and taken by means of a scheme and artifice to defraud, in violation of 18 U.S.C. §§ 2314-2315." It is further alleged that either the excavators or the transporters sold the sand and gravel for money or property. Plaintiffs allege that as a result of these violations, they were damaged in the amount of $5,000,000. a. In November of 1992, the New York State Department of Environmental Conservation

(the "DEC") discovered that solid waste material was allegedly being deposited at the site. Accordingly, the DEC cited the plaintiffs Holiday and Colony as owners of the property for "owning and/or operating a solid waste management facility without a permit.”

b. On October 27, 1993, the plaintiffs and the DEC entered into a consent order that required, among other things, that the plaintiffs incur the cleanup costs for the removal of solid waste from the site and pay penalties and fines that exceeded $70,000.

9. The Fehrs’ parcels are zoned Industrial 1, which prohibits outdoor storage. To the degree that the Fehrs’ ownership of the parcels and operation of industrial activities predates the zoning restrictions, authorization for continuing non-conforming use is limited to those particular industrial activities and the parcels upon which they occurred prior to promulgation of the relevant zoning restrictions. Following that date, expansion of those otherwise prohibited industrial activities does not constitute a continuing non-conforming



use. Zoning restrictions apply to industrial activities that are initiated or expanded following the effective date of the zoning regulations. a. Between 1997 and 1999, the Fehrs deposited a vast volume of the tailings from the

boring of the #3 water tunnel in New York City that stood at times at an estimated height of approximately 100 feet and spanned several acres at its base in what was suspected to be a gross and unauthorized expansion of the non-conforming use of the effected parcels.

b. As of this writing, the Town of Islip has steadfastly denied FOIL requests for access to public records that would clarify this uncertainty: ownership of each of those parcels, the commercial activities that have been permitted or otherwise authorized for each of those parcels, and violations that have been reported to, investigated by and/or resulted in enforcement action by the Town for each of those parcels.

Regulation of the Commercial Activities on the Furrows Rd. Industrial Properties

1. In 1993, the Suffolk County Department of Health Services Board of Review denied the principals’ application for a waiver from Article 7 of the Suffolk County Sanitary Code, in part, because: “The Department is concerned that this site could evolve into a toxic and hazardous materials treatment, storage, and, ultimately, disposal facility. As the economic benefit from the PCS (Petroleum Contaminated Soil) recycling operation becomes more apparent to Prima, the impetus to enhance and enlarge the recycling operation will be compelling. To insure a steady supply of PCS, which can now be considered a “raw material,” Prima will look to accept PCS from out-of-state spills where it will be more difficult to consistently adhere to custody and security procedures.”

2. In spite of this prescient admonition, in 1996 DEC granted “Registration” authorization for a solid waste recycling facility on those parcels. DEC did not consult, collaborate, or coordinate that authorization with the municipal authority. Had it done so, it would have learned that those parcels are Zoned Industrial 1, which prohibits the outdoor storage of industrial materials. That calls into question whether DEC ever consulted, collaborated or coordinated that action with Suffolk County authorities; whether it granted “Registration” authorization unilaterally; and whether it considered or performed an impact assessment as regard the potential health implications for the neighboring residential communities prior to granting the authorization. What is clear is that DEC’s grant of “Registration” authorization facilitated otherwise prohibited commercial activities and that it did so without holding any public hearings or otherwise offering the public that would be affected by its decision any notice or opportunity for question or comment.

a. On July 13, 2016, during the question and answer period following his PowerPoint

presentation on the activities on the Furrows Rd. industrial properties, DEC Region 1 Engineer Ajay R. Shah, P.E. offered the following relevant information: i. “Registration” is a ministerial process that grants authorization for specified activities

to a particular operator but does not specify or otherwise limit that authorization to any particular parcel(s).

ii. Registration authorization is not conditioned upon operator compliance with municipal code or any active DEC oversight.



iii. Specifically, Mr. Shah admitted that DEC’s assessment of the materials on the Furrows Rd. parcels is limited to visual inspection. DEC performs no testing or analysis of those materials to determine whether they contain respirable particles of hazardous contaminants. Respirable particles of dangerous contaminants do not lend themselves to detection through inspection by the naked eye.

iv. DEC testing in 2015 matched particulate matter recovered from the Colony to industrial activities on the Fehr parcels, confirming the ability of fugitive particulates to migrate freely from those industrial parcels to Colony residences – the vector.

v. Pure Recycled Product’s “Registration” authorizes storage of up to 450,000 cubic yards of materials – an amount that he offered, in his opinion, is excessive.

vi. Inasmuch as volume – in the case of Recycled Products, 450,000 cubic yards – is the only materials storage limit specified in the “Registration” authorization, there are no height limitations. Mr. Shah indicated that DEC was urging the operator to reduce the height of the mounds but could offer no specifics as to the current or target heights.

b. The following matters are worthy of being repeated:

i. Fehr controlled business entities engage in heavy-duty excavation activities in the boroughs of New York City.

ii. Long Island Business News interviewed a veteran trucker who reported regularly dumping potentially tainted materials and debris from New York City in several sites in Suffolk County, including the Furrows Rd. industrial properties.

iii. An operator who was banned from operating in NYC due to his role in criminal trade waste activity, including dumping prohibited waste in the Town of Islip dump, was observed, weeks later, dumping what appeared to be C & D on the Furrows Rd. property, as were several other trucks that did not bear markings and identification that are required by the NYS Vehicle and Traffic Law.

iv. The Fehrs were implicated in the unlawful clearing, mining and dumping on the Ciardullo properties in the lawsuit filed by the Ciardullos and the Fehrs’ response in that action that indicated that they, the Fehrs, had adversely possessed and improved those parcels. Analysis of the prohibited materials that were dumped on those parcels has yet to be completed. The risk to public safety posed by those unlawful activities has yet to be determined.

3. In 1999, Ray Cowen, then Director of DEC Region 1, described the debris that was created by the boring and construction of the #3 New York City water tunnel as a product for use rather than solid waste and that, as such, his office had no authority to regulate the vast amount of borings that had been deposited on the parcels that then Suffolk County Legislator Steve Levy described as “a mound the size of the World Trade Center”. Director Cowen dismissed the fugitive particulate matter that migrated to adjoining residential properties as a nuisance dust condition and callously offered: “there is not a hell of a lot I can do about it.'' Director Cowen similarly dismissed concerns of area residents about potential health hazards posed by the material: ''All we are talking about is limestone or possibly granite. It's rock dust and it is not a carcinogen.'' In 1999, the New York City Water Tunnel was in phase II of construction with boring being performed in Brooklyn and Queens with a tunnel-boring machine. Long Island bedrock is not limestone. Granite, on average, is composed of more than 70% silica. Mr. Cowen’s assertion is directly



contradicted by a report of subsequent analysis of materials removed from the mound that provided, in relevant part: “The appropriate particulate size fraction for assessing whether adverse health effects might be associated with airborne crystalline silica is less than 5 m. This is the particulate size fraction for crystalline silica that has been associated with silicosis (US EPA 1996; Schultz 1994) and is sometimes termed the “respirable fraction”.

a. Suffolk County Department of Health Services asked the state to deploy an ambient air

monitoring station in The Colony to assess the particulate matter emanating from the materials. On May 19, 1999, Kenneth M. Hill, chief of the Public and Environmental Health Laboratory wrote to State Senator Caesar Trunzo regarding local resident concerns about particulates measuring 2.5 microns and smaller, as their ability to become lodged in the deepest recess of the lungs poses significant health hazards. Mr. Cowen said that the state did not have such a device available and added that this equipment is not used for such purposes.

b. Mr. Hill was unaware of Mr. Cowen’s position and was unsure of what was to be done

next. He offered: ''We are not saying there is or there is not a health concern,'' he said. ''We just wanted to take measurements to determine the concentrations at that site.'' Mr. Cowen suggested having a handful of material from the debris pile analyzed by a laboratory. Mr. Hill said that approach would be discussed with the community and indicated: “We're not running the show . . . we're just supporting the citizens and trying to address their concerns.'' Mr. Cowen said that he was convinced that residents’ problems could not be resolved: “It's impossible . . . I'm sure they want a 100 percent solution, but it doesn't exist.''

c. In November 1999, Colony residents provided NYS Department of Health with January

2000 Suffolk County Department of Health Services video tapes showing dust clouds blowing from the piles and expressed concern about the potential migration and inhalation of fugitive particles of silica – a known carcinogen. NYS Department of Health and Suffolk County Department of Health Services representatives visited the site in January 2000 and collected samples from the mound of material.

i. A March 6, 2000 memo from James S. Weber of the NYS Department of Health,

Asbestos Analysis Laboratory of the Laboratory of Inorganic and Nuclear Chemistry to Mike Hughes, Jan Storm and Stan House of the Bureau of Toxic Substance Assessments found that the sample materials collected from the mound on the Prima parcels contained one hundred million respirable-sized particles per gram of debris – particles that included significant quantities of the known carcinogens silica and chrysotile asbestos, 24% and 6% respectively.

ii. A December 13, 2005 report HEALTH CONSULTATION RESULTS OF AIR EXPOSURE INVESTIGATION prepared by NYS Dept. of Health Center for Environmental Health under cooperative Agreement with the U.S. Department of Health and Human Services Agency for Toxic Substances and Disease Registry inexplicably and remarkably provided different analytical results from the same samples that were cited in the March 6, 2000 memo above as regards the concentration of respirable asbestos the samples contained. Specifically, the 2005 report reported: “In general, respirable-sized particles less than 5 microns (m) made up approximately 1%, by weight, in each of the samples. The respirable fraction was further



analyzed for composition and determined to be 4% silica from the top of the pile to 24% at the bottom of the pile. Asbestos was not detected in the sample from the top of the pile, but trace amounts of asbestos were identified in the sample from the base of the pile. The amount was determined to be 0.1% by weight of the respirable portion, which is less than the criterion (1% or greater for) for material to be considered asbestos- containing. It is difficult to reconcile such a finding with the assertion that the materials and contaminants on the site represented “no apparent public health hazard.” No agency has yet provided an explanation or reconciliation of the discrepancy between the March 6, 2000 memo and the December 13, 2005 report.

iii. The following excerpts from the 2005 report are instructive: These data suggested that crystalline silica might be present in fugitive emissions of respirable particles reaching The Colony or other residential areas from the stockpiled material at PRIMA Asphalt, Inc. Crystalline silica was of potential concern since long-term inhalation exposures to it have been associated with pulmonary dysfunction and silicosis, a degenerative fibrogenic lung disease (Schulz 1994). Also, the International Agency for Research on Cancer recently concluded that crystalline silica was a human lung carcinogen under some occupational conditions. The specific conditions of exposure (e.g. types, characteristics of silica), however, have not been clarified. The appropriate particulate size fraction for assessing whether adverse health effects might be associated with airborne crystalline silica is less than 5 m. This is the particulate size fraction for crystalline silica that has been associated with silicosis (US EPA 1996; Schultz 1994) and is sometimes termed the “respirable fraction”. Asbestos was also of potential but lesser concern since long-term inhalation of certain types of asbestos fibers has been associated with asbestosis and cancer. The likelihood of developing these diseases is related to the number of asbestos fibers inhaled as well as the length and diameter of the fibers (Schultz 1994; ATSDR 1999). To determine if residents south of the PRIMA facility were being exposed to crystalline silica and/or asbestos in fugitive air-borne particulates at levels of public health concern, the NYS DOH, SCDHS and ATSDR developed an air sampling program. Concentrations of airborne particulate matter smaller than 10 m in diameter (PM10) were also measured because long term concentrations above 150 micrograms per cubic meter (g/m3), measured at area monitors, may aggravate health problems such as asthma (US EPA 1997). Particulate matter is the term used for a mixture of particles commonly found in air and is frequently referred to as dust. PM10 refers to particles less than 10 m in size. Air samples were collected at an open, centrally located position on The Colony property that is approximately 400 yards south (downwind) of the pile of aggregate. Control (upwind) samples were collected at the SCDHS mobile Air Monitoring Station on the grounds of the Sagamore Jr. High School, approximately 1-mile north. Continuous meteorological conditions were also monitored at this location.

iv. Air samples were collected from the Colony air monitor on only 12 days from July 19,

2000 through November 18, 2000 (a period of 122 days). Rather than collecting on days when prevailing winds were out of the north at increased velocity, 11 of the 12 samples were collected on days when wind speeds were between 2 and 4 miles per hour and the likelihood of migration and collection of airborne contaminants was proportionately diminished. Notably, the 2005 Health Consultation conclusion found: “the air sampling results from this study may not characterize the dust levels for short, high wind conditions. Continuous, hourly monitoring would be necessary to evaluate those



conditions.” The same dynamic would, logically, apply to respirable contaminants. Without explanation or reconciliation of the discrepancy between the reported concentrations of silica and asbestos in the samples taken in January 2000 and in light of the shortcomings of the air sampling process, the 2005 report concluded: “Based on ATSDR’s present public health hazard categories (see Appendix B), the PRIMA Asphalt site has been categorized as “no apparent public health hazard”.

4. On July 15, 2016, New York State Senators Phil Boyle and Thomas Croci and Assemblyman Al Graf wrote to DEC Commissioner Basil Seggos to request new studies and installation of an air monitoring station in The Colony community to assess the potential presence of airborne contaminants that could endanger public health. Commissioner Seggos’s response to the legislators cited the overly broad explanations and disturbingly disingenuous assurances provided by DEC at the July 13, 2016 public meeting in Holbrook hosted by Assemblyman Graf. The Commissioner’s response betrayed a measure of willful ignorance that calls into question whether the protection of public health is a priority of that Executive department or even a commitment to which it is bound.

5. As of this writing, the Town of Islip has refused to release public records regarding ownership, authorized industrial activities, denied or declined authorization applications and requests, and relevant enforcement actions for each of those parcels. a. The Town of Islip has seemingly absented itself from active oversight of the activities on

those parcels. Anecdotally, various representatives suggest that the Town has no role where DEC has authorized any activity. That suggestion is belied by the provisions of New York Environmental Conservation Law § 27-0711. Local laws, ordinances and regulations, which provide: Any local laws, ordinances or regulations of any governing body of a county, city, town or village which are not inconsistent with this title or with any rule or regulation which shall be promulgated pursuant to this title shall not be superseded by it, and nothing in this title or in any rule or regulation which shall be promulgated pursuant to this title shall preclude the right of any governing body of a county, city, town or village to adopt local laws, ordinances or regulations which are not inconsistent with this title or with any rule or regulation which shall be promulgated pursuant to this title provided, however, that the exercise of such right by a county shall relate only to the area thereof outside any city, village or area of any town outside the village or villages therein during such time as such city, village or town has local laws, ordinances or regulations consistent with this title or with any rule or regulation which shall be promulgated pursuant to this title. Any local laws, ordinances or regulations of a county, city, town or village which comply with at least the minimum applicable requirements set forth in any rule or regulation promulgated pursuant to this title shall be deemed consistent with this title or with any such rule or regulation.

b. The Town of Islip can regulate the height of the piles of materials on the Furrows Rd. industrial properties and other aspects of the industrial activities on those parcels to mitigate potential risks to public health, yet chooses not to do so.

c. DEC Region 1 staff members claim that their office forwarded the November 19, 2016 Environmental Notice Bulletin regarding the proposed Green Rail Transfer project to the offices of the Islip Town Supervisor and each of the Islip Town Council members. The Town of Islip failed to inform the neighboring communities of the project application/ proposal or to take any action to provide a forum for any public hearing or public



comment. There is no indication that the Town contemplated or made any effort to assess the potential impact the proposed initiative might have on neighboring communities. A staff member in Supervisor Carpenter’s office could only recall receiving correspondence regarding permits for the proposed project but was not free to discuss it, advising that any information would have to be obtained through the FOIL process. Given the Town’s history of refusing to release records regarding those parcels, there is little likelihood that neighboring residents will be able to obtain access to those records in time to engage in informed discussion of the proposal at the public hearing that is scheduled for January 4, 2017 at DEC’s Region 1 offices in Stony Brook.

Summary

The policy objective of reducing heavy-truck traffic on regional and statewide roadways is compelling. Rail transport is an attractive and potentially viable alternative. But the ends, no matter how noble, cannot be allowed to justify means that are inimical to the public interest. Public policy is not a spectator sport. At its worst, it resembles blood sport. At its best, it considers and advances the common interests of all. In general, it works best for those who are most informed and most involved and, on that score, there is no denying that resources help. In public policy, there is truth to the old adage that the squeaky wheel gets the grease. Those commercial interests who are literally banking on the activities that occur on those parcels know how, when, where and to whom to squeak and they do so faithfully. But for a period of time beginning in the late 1990s, neighboring residents who suffer the consequences of those activities have been largely quiet and have absented themselves from policy discussions. The resulting policies and practices are no surprise. They have best served the interests of those who have been most active and engaged, at no small consequence to those who remained silent. When contemplating the inexplicable and, at times stunning, bureaucratic indifference and ignorance that surround these policies and practices, it is helpful to consider first the invisible hand of political influence and second the admonition of Upton Sinclair that "It is difficult to get a man to understand something, when his salary depends upon his not understanding it!". For those who are responsible for the commercial activities on those industrial properties, this is about their livelihood. For the majority of the neighboring residents, this is about their home - the place that is the center of their lives. Inarguably, these are compelling and competing interests. Related public policy, as implemented by elected officials, and as administered by appointed officials, is anything but balanced. Elected representatives and the officials they appoint are willing to grant operators of an elaborate web of interconnected businesses, with a well-documented history of unlawful and irresponsible business practices (including an ongoing tendency to violate statutes, regulations and contracts), broad discretion in the operation of large-scale industrial activities that have profound public health implications. Yet, somehow, those same representatives and officials are disturbingly reluctant to provide active oversight or to commit the resources necessary to ensure that public health is not being compromised by those business activities. It is a policy of overly-generous permissiveness, tolerance, and forgiveness for industry and willful ignorance, austerity and disturbing indifference as regards public health. This is not a matter of mere chance. Long ago, New York City recognized the threat to public health posed



by irresponsible trade waste industry practices and responded with comprehensive policy solutions that coordinate regulation and enforcement - and allocated sufficient resources to effectively implement them. Elected state, county and Township officials on Long Island have failed to apply the lessons learned from New York City’s successful efforts. Instead, they indulge in endless bureaucratic finger-pointing and denial of responsibility while irresponsible operators exploit the gaping regulatory gaps to considerable financial benefit that, in some cases, is shared by collusive officials - at increasingly substantial public cost and consequence. The Furrows Rd. properties are an excellent example. NYS DEC grants the operators authority for large-scale industrial activities in the shadow of densely-populated residential communities without requiring operational compliance with County and municipal codes and regulations. Adding insult to injury, that authority is granted without opportunities for public input regarding operating and monitoring protocols and without providing the public with evidence of adequate impact studies and analyses. The DEC, Suffolk County and the Townships do not provide active oversight of the activities on those parcels, including regular unannounced inspections and analysis of the materials on those parcels and continuous air monitoring in neighboring communities. This is unacceptable. In granting authority for large-scale industrial activities that have potentially profound public health implications, the regulatory authorities should consider the business history and practices of the applicants’ principals and business entities – including business-related criminal convictions, regulatory enforcement history and involvement in open or pending criminal and or civil investigations. Operators that have demonstrated a propensity to flout statutes, regulations and contractual obligations should not receive discretionary grants of authorization to conduct large-scale industrial activities that can harm the public’s health. The critical omissions from the application, outlined above, withhold relevant information regarding the business interests and practices by principals of the proposed venture from the careful examination and consideration of the regulatory agency. The omissions serve to sanitize the application. The approval of an incomplete and/or inaccurate application for authorization to engage in large-scale industrial activities, and the attendant failure to thoroughly investigate the fitness and trustworthiness of the applicants to faithfully and reliably perform within relevant statutory and regulatory constraints is an unacceptable compromise of the public interest. It is worth noting that the NYC Business Integrity Commission would likely deny these applicants authorization to conduct such an operation within New York City, given their history of unlawful and irresponsible business practices. DEC’s assurances that the permit will be granted for a period of only one year during which the operation will be closely monitored by DEC for compliance offers cold comfort. That argument is but the thin edge of a wedge that is being used to force the advancement of a project to inevitable permanent status, led by principals with a history of irresponsible business practices. Monitoring is to be performed by the same resource-constrained DEC Region 1 office that failed to prevent improper dumping of C & D materials on the parcels controlled by Recycled Products; failed to prevent the dumping of likely-tainted NYC trade waste that was reported in the July 15, 2016 LIBN article; and failed to “observe” or prevent the industrial-scale clearing and mining of approximately 10 acres of land at the west end of the property and the backfilling



of the resulting voids with prohibited waste over a period of years -- even though all of those parcels share a single point of access and egress that is controlled by the Fehrs and DEC is responsible to “monitor” the processing of RUCARBS on the registered solid waste management facility controlled by Recycled Products (within line of sight of the unlawfully cleared, mined and backfilled parcels). Finally, what is preventing Long Island’s State, County and Township elected officials from replicating New York City’s successful public policy and implementing meaningful solutions to a widely-reported regional problem with substantial and escalating environmental and public consequences? The answer is political will. Current policies reflect the political will of those who are literally banking on the status quo. When enough working-class taxpayers have decide that they have had enough, they can come together to speak with one voice to demand change and, if and as necessary, impose political consequence for the failure to deliver it. We shall have what we choose. It’s a question of priorities.

6NYCRR Part 360 Application for a Research, Development ... · PDF file6NYCRR Part 360 Application for a Research, Development and Demonstration Permit for ... Regional Permit Administrator

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