No action in Battaglia Demolition dust up

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State and city officials have failed to follow through on promises made over a year ago to clean up operations of a construction and demolition debris facility that’s the subject of a decade-long dustup with neighbors.

As a result, Seneca-Babcock residents said they endured yet another summer of dust, noise and diesel truck fumes from Battaglia Demolition’s operation off Seneca Street.

Battaglia Demolition collects concrete, bricks and other construction and demolition debris. The facility also crushes concrete and brick, which residents say stirs up clouds of dust that settle on their properties. In addition, up to 200 trucks a day rumble up and down Peabody Street, swirling more dust into the air.

“I like to have my windows open, but we can’t because of the dust,” said Peabody Street resident Elsie Karpinski.

After several reports by Investigative Post last spring, state and local officials stepped up enforcement of the business. Then, in October 2014, U.S. Senator Chuck Schumer held a press conference in the neighborhood urging regulators to clean up Battaglia’s operations.

Fourteen months later, neighbors said little has changed.

Consider:

• The city took the owner, Peter Battaglia, to Housing Court in July 2014. That case is stalled in Housing Court.
• The state Department of Environmental Conservation has filed five separate notices of violation since April 2014. The DEC has taken no further enforcement actions against Battaglia Demolition or the company’s owner, however.
• State Attorney General Eric Schneiderman’s office picked up the case from the DEC a year ago, but has failed to file any legal action.

While regulators and leaders have failed to bring the dispute to a resolution, Battaglia Demolition continues to operate.

The only substantive action has come from Battaglia, who filed a lawsuit in September against the DEC and the City of Buffalo.

“It’s been 20 years of abuse,” Battaglia said in a short phone interview. He declined further comment.

Both the city’s law department and the Attorney General’s office refused to comment, citing Battaglia’s legal action. DEC officials said they have referred enforcement actions to the Attorney General’s office, “which will determine next steps, including assessment of penalties for violations.”

Residents, meanwhile, are growing increasingly frustrated.

“It’s feeling like nobody’s getting any justice here,” said Rebecca Newberry, executive director of the Clean Air Coalition of Western New York, which is working with residents.

City case plagued by delays

Residents have complained for over a decade about the impact Battaglia Demolition has on their quality of life.

The truck traffic creates noise and spews diesel fumes into the neighborhood. Dust coats cars and houses, both outside and in.

“It’s horrible,” said Peabody Street resident Diane Lemanski. “You don’t even want to sit outside in my lawn because of the diesel fumes.”

City officials last year installed a blue-light police camera in front of Battaglia’s facility to document any breach of operating hours. Neighbors said they regularly see trucks entering the facility before 7 a.m. and leaving after 6 p.m.

Then, in July 2014, the city filed charges against Battaglia in Housing Court. The city said the company has operated outside the scope of its permit by accepting garbage and ignored the hours of operation approved by the Planning Board.

But the city case has been plagued by delays. A trial is rescheduled for Jan. 21.

“It’s frustrating because every time we go [to court] we think we’re going to get some kind of closure,” Lemanski said.

“It’s always postponed due to baloney.”

State efforts stalled

DEC officials knew four years ago that brick and concrete fragments drift into the neighborhood from Battaglia Demolition’s crushing operation. State reports show the fragments likely contains silica, a carcinogen.

On Dec. 7, 2011, the state filed a notice of violation against the company, in an attempt to force it to apply for a state air permit for his concrete crusher, which could require pollution-control measures.

Battaglia has refused to apply for the permit, stating the capacity of the crusher falls short of the threshold for which a permit is required. He has also maintained the business is exempt from the law the DEC is citing.

Since Investigative Post’s report in April 2014, the DEC has filed at least five additional notices of violation against the company.

The latest violation notice, on May 8, 2015, includes repeat offenses, such as operating the crusher without a state air permit and operating without a valid state construction and demolition debris permit since February 2013.

But the state also cited the company on charges of failing to control dust “so that it does not constitute a nuisance or hazards to health, safety or property,” and installing business signs that contain inaccurate or misleading information.

Listen to the radio version of this report produced for our partners at WBFO, 88.7 FM

Those signs, according to the DEC, incorrectly state the company’s permits, hours of operation and the materials it can collect.

Battaglia denied the charges in a May 23, 2015, letter to the DEC. He said the dust is not generated by his company and that his signs are “lawful.”

The DEC last year referred the case to the Attorney General’s office, which this summer collected depositions from neighborhood residents and at least one Common Council member.

“The biggest frustration is that it’s taking so long,” said Fillmore District Common Council Member David Franczyk, who gave a deposition to the Attorney General’s office. Battaglia’s business operates in his district.

Schumer’s call not heeded

Schumer’s visit to the neighborhood in October 2014 buoyed optimism among neighbors.

The senator joined Peabody Street residents in front of Battaglia’s business to call on authorities to put an end to the disputes.

“This company has left the Seneca Babcock community in what one local media outlet called, ‘a decade-long dust bowl.’ ” That is not right, that is not fair and we need to change it,” Schumer said during his press conference.

A year later, neither the federal Environmental Protection Agency nor the Attorney General’s Office has heeded Schumer’s call to action.

“It’s really difficult to have hope presented to you, that there will be a change and your neighborhood will get better, and then nothing comes of that hope,” said Newberry of the Clean Air Coalition. “That’s what I am hearing from folks on Peabody Street.”

In fact, only Battaglia followed through after Schumer’s visit, by filing his claim against the city and DEC.

Battaglia’s lawsuit in State Supreme Court repeats the same arguments he has had with state authorities for the past four years. He says his business is exempt from the laws for which the DEC is citing him and that city officials are unfairly enforcing regulations.

The Attorney General’s office has filed a motion to dismiss Battaglia’s claim. A hearing has not been scheduled.

“Battaglia is a master at brinkmanship,” Franczyk said. “It’s a never-ending cycle.”

Meanwhile, residents continue to deal with the same problems.

“We’re still breathing in diesel fumes and silica dust,” Lemanski said.

The situation hit a new level of bizarre on Dec. 1 when someone dropped half of a white pick-up truck in front of the Peabody Street home of the Weaver family, who are critics of Battaglia.

The property is owned by Battaglia Demolition and there are truck tracks leading from the half-truck to a side gate for the company.

“I don’t know if he is trying to make the neighbors mad, but it’s an eyesore,” said Norm Weaver.