DEC’s dustup with Battaglia Demolition

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The decade-long conflict between Peabody Street residents and an adjacent construction and demolition recycling facility continues despite recent enforcement actions by state environmental regulators.

The Department of Environmental Conservation on May 1 cited Battaglia Demolition, owned by Peter Battaglia, with five notice of violations.

Two of the alleged violations deal with failing to control dust that the DEC say drifts off the property from his concrete crusher as well as from the 80 to 200 trucks that rumble down Peabody Street most days of the week to get to and from his facility, located a mile southeast of downtown in the Seneca Babcock community. The other three alleged violations deal with previous problems the DEC has with Battaglia regarding permits, and for not maintaining air pollution equipment at his facility.

Battaglia is contesting the charges.

Peabody Street residents’ complaints include the noise from truck traffic and the concrete crusher, potholes and clouds of dust that blanket their cars, homes and windows. Some residents say the dust gets so bad that they cannot open their windows when it is warm outside. Residents also filed last year numerous health complaints with the DEC about children with breathing problems and bloody noses; others complained of burning eyes, itchy skin and vomiting.

The DEC enforcement follows an Investigative Post report in April that highlighted neighborhood residents’ longstanding battle with Battaglia and the lack of response from city officials and state environmental regulators.

Although the new violations match some of the concerns that neighborhood residents have with the business, they remain doubtful much will change.

“We need help now,” said Peabody Street resident Diane Lemanski. “We’ve been breathing this stuff in for umpteen years.”

As a result of the pollution concerns, DEC officials said in April that they had planned to measure air pollutants with a monitor, but so far department officials have been quiet about the timing of the program. DEC officials have declined interview requests.

In addition to the state’s enforcement, the Buffalo Public Works Department has taken action to ensure Battaglia’s business operates within his new permitted hours that became effective in July and that the truck traffic does not cause further damage to the streets.

Regardless of the recent developments, some neighbors want swifter action that results in immediate improvements in their quality of life.

“They’ve got to shut him down or move him—one or the other—but do something,” said Jackie Weaver, another Peabody Street resident.

In all, the five citations carry fines up to $18,000 plus as much as $15,000 each day the violations continue. In addition, Battaglia himself could be fined a civil penalty not to exceed $7,500 plus $1,500 for each day the violations continue and charged with a misdemeanor, punishable by up to a year in jail, for ignoring the violations.

In response, Battaglia said state and local officials are trying to make a mockery of him and his business.

“The whole thing is a joke,” he said during a telephone interview.

“We are a law-abiding business and we haven’t changed our operations since 1998.”

His neighbors don’t agree.

State takes action

Two of the most common complaints by residents are about the dust and truck traffic.

In an attempt to verify these complaints, DEC and Environmental Protection Agency officials on April 25 inspected Battaglia’s business. They concluded that the dust from the concrete crusher and truck traffic were all impacting the residents’ quality of life.

“Operations at the facility are causing dust to be transmitted off site,” the DEC notice of violation states.

“In addition, ground material and dirt from the facility is carried out by truck traffic onto Scatcherd Place and Peabody Street, creating significant dust.”

As a result, the state filed two new violations against Battaglia that accuse him of allowing air contaminants to leave his property that could be “injurious to human, plant or animal life or to property, or which unreasonably interfere with the comfortable enjoyment of life or property,” which has created a public nuisance.

“We control dust on the inside of our property line and everything that’s on our property,” Battaglia said in a prior interview.

However, the third violation stems from an inspection in December 2011 when DEC officials cited Battaglia with failing to have a water hose connected to his crusher for the purpose of controlling dust.

One potential health concern is that the road, brick and concrete dust that drifts into the neighborhood contains silica, a carcinogen, the DEC concluded three years ago.

However, a DEC spokesman wrote in an email earlier this year that although the dust may cause irritation, the particles are too large to become a chronic health issue. Regardless, the DEC said it had planned to monitor air pollutants in the neighborhood, but has refused to answer questions about when the program will begin.

In response, Battaglia fired off a letter to the DEC on May 21 contesting the charges.

I’ve never been shut down by the DEC. Why don’t they shut me down?

–Peter Battaglia, owner of Battaglia Demolition

He argued that environmental regulators could not have known for sure the dust was generated by his operations because the inspectors wore sunglasses, with most of their view blocked by piles of demolition rubble.

The two other violations Battaglia was cited for on May 1 deal with previous discrepancies over two separate permits, both of which continue to be mired in legal disputes.

The DEC says an air permit was required before Battaglia began to use his concrete crusher, but he never applied for one. The other violation deals with his failure to renew the solid waste permit that allows him to collect the construction and demolition debris. That permit expired over a year ago.

Battaglia counters these charges in his letter, arguing that DEC officials should have addressed the air permit issue before they approved his registration to operate, and that his concrete crusher is too small to require such a permit anyway.

As for the solid waste permit, Battaglia said he tried to renew it, but the state rejected his application because he was late.

Concurrent to the state enforcement, city officials have also taken some action.

City actions

The Planning Board earlier this year reduced Battaglia’s hours to match those in his state permit. They became effective last month, cutting his Saturday hours nearly in half with no business on Sundays.

In a bizarre twist, Steve Stepniak, the city’s commissioner of public works, erected a blue-light police camera across the street from the business entrance to ensure Battaglia operates within those hours and that the trucks delivering debris to his facility do not cause damage to public streets.

“I’ve never seen anything like that,” Battaglia said in a telephone interview. “I’m targeted by the city. I got a letter from them that they want to close my business down.”

In a May 17 letter, Battaglia accused city crews of dumping piles of blacktop near his entrance, forcing trucks to drive onto the curbs, and of purposely sweeping only half of Peabody Street, contributing to the dusty conditions.

“There’s absolutely no truth to that,” Stepniak said. “We sweep the side that’s available based on parking.”

Although concrete crushing operations are no longer allowed in the Seneca Babcock community, Battaglia says he started using his crusher on site before the city changed the zoning regulations in 2010.

Still, Lovejoy District Common Councilman Richard Fontana urged the DEC to prohibit Battaglia from operating.

His March letter to the DEC states that the noise, odor and pollution caused by the truck traffic impacts quality of life in the neighborhood.

“Above all, the stone crushing processes that occur at the Battaglia facility pose an extreme health hazard to the residents of the area, from the fine particulates thrown into the air that can cause respiratory disease and even cancer,” he wrote.

With environmental regulators closing in, Battaglia wondered why they still allow him to operate.

“I think it’s nothing more than allegations,” Battaglia said. “I’ve never been shut down by the DEC. Why don’t they shut me down?”