In court, expert criticizes Saugerties dump testing that found dangerous contaminants

An environmental engineer testifying on behalf of C&D debris dump owner Joe Karolys in state Supreme Court Wednesday, Sept. 11 attempted to poke holes in state Department of Environmental Conservation test results that showed dangerous levels of toxic materials in the three dumpsites.

According to testing ordered by the DEC during a court-ordered raid of Karolys’ Saugerties properties in May, samples taken from the properties contain state-prohibited levels of heavy metals, such as lead and mercury, and pesticides like DDT. Robert LoPinto, whose firm Walden Environmental Engineering has branches in Oyster Bay and Hopewell Junction, asserted that there were mathematical errors in the DEC’s findings, that the “chain of custody” for who handled the material and when it was handled wasn’t thorough enough and left room for error, and that not enough samples had been taken from the properties to meet the DEC’s self-imposed construction and demolition debris testing guidelines.

“The DEC basically collected two samples at each location, while the chain of custody shows in some locations five samples,” said LoPinto, who said he was being paid $250 per hour, including travel time, for his testimony. “Two of them were background, one shows a different set of chemicals shown in their report. In an area over 10,000 yards … you need at least 12 samples. They only had two.”

Wednesday was the fifth session in the Article 78 hearing to determine whether the town’s stop-work order against Karolys’ operation was legal. Karolys has also been slapped with stop-work orders from the DEC and the county health department. But the dumping continues at the sites on Route 212, Fel Qui Road and Goat Hill Road pending a decision from state Supreme Court Judge Richard Mott.

On the stand, LoPinto argued that the collection methods used during the May raid and described by DEC engineer David Pollock at a previous court session were invalid.

“I went to each site and, after walking around and observing what was there, I scraped away the top layer that was there, which was about an inch deep,” LoPinto said of his process during his Aug. 21 visit to Karolys’ dumps. “I took a rock and I scraped the soil away from a six-by-18-inch area, scraped it down an inch or so, picked up the material in my hand, picked it up, put it back down and observed the material. And that is what I did at each location.”

“You stuck your hand … into the pile?” asked Mott. “What were the dimensions of the pile? You stuck your hand in it? And that’s an inspection of what’s in the pile?”

“Let’s contrast that with what you did in coming in and rendering your opinion,” said Greco to LoPinto. “If I understand your testimony correctly, you came in and … walked to the approximate center of each of the three sites … and you reached down and looked down and felt with your hand. … Would you agree that the DEC sampling, regardless of how you may quibble with the particulars of it, can you agree that the DEC sampling was much more [thorough] than your own?”

LoPinto conceded his testing was not as thorough as the state agency’s, but said the DEC was biased in choosing which locations on the sites it took samples from, while LoPinto said he took his hand samples from randomly selected sites.

“Would you agree that the size and scope of the material on the property is of genuine concern to a municipality?” Greco asked LoPinto. “Would you agree that the potential for contamination increases as the volume of material increases?”

LoPinto did agree with these things.

“Let’s assume this is true and DEC totally botched this entire process,” said an apparently exasperated Mott to Higgins. “How is that relevant in any way shape or form to any disparate treatment that your client received at the hands of the respondent, which I have been asking you to focus on for this entire testimony?”

“I’ve been trying to tell the court …” Higgins responded before Mott cut him off with a curt, “Let’s get to it.”

After further testimony, the matter was adjourned until Thursday, Sept. 12. Karolys will also appear in town court on Sept. 13 at 9 a.m. on the matter of charges against him that he accepted truckloads of C&D material onto his properties outside of the 7 a.m. to 3 p.m. timeframe set forth in Mott’s original restraining order which blocked the town’s original stop-work order. At Karolys’ Aug. 22 arraignment on the charges, an attorney from Higgins’ law firm requested that the trial take place in another town, arguing that Karolys would not receive a fair trial in Saugerties. But Town Justice Chris Kraft pointed out that jury bias would not be an issue as it’s not a jury trial.

Since then, according to town Assistant Code Enforcement Officer Kevin Brown, Karolys has been cited for additional dumping instances that allegedly took place after 3 p.m. on Aug. 28 and 29.