When Rod Smith, state attorney for the 8th Judicial Circuit, filed six criminal dumping charges against White Construction -- one of the top 10 road contractors in the state -- company President Luther White was incredulous. Dumping wasn't an uncommon practice, after all, and he was doing it on his own property. Only after Smith threatened to put him in jail did White agree to spend upward of $2 million on cleanup, testing and fines -- in exchange for deferred prosecution.
The 15-inch-thick case file, made public in January when White wrote his final check to the county and the case finally ended, reveals why the longtime road builder had felt untouchable. Despite laws that require builders to dispose of construction and demolition (C&D) materials in special landfills, or to secure permits before they store it themselves, illegal dumping of highway waste remains a problem, particularly in north Florida. The operator of an adjacent limerock pit told investigators that truck drivers approached him to dump construction waste "all the time."
The problem goes beyond attitudes to questions of enforcement and accountability. State law says contractors and anyone else who needs to dump C&D waste must pay to dispose it in a special landfill that meets stringent environmental standards. Yet "promiscuous dumping" in north Florida continues, says Jack H. McNulty, solid waste supervisor for the Department of Environmental Protection's (DEP) northwest district, which stretches from Escambia to Leon County. Aside from Smith's efforts and a handful of other cases, prosecution of offenders is rare. Moreover, the state Department of Transportation (DOT), which awards contracts to road builders, does not enforce its own contract provisions requiring road-project waste to be disposed of in accordance with federal, state and local laws. And the agency continues to give lucrative contracts to builders that have a record of dumping. White Construction, for example, working on a stretch of I-75 in Broward County in 1992, had to pay $10,000 in fines for stockpiling batteries, spilling oil, burying tires and destroying sensitive wetlands near the Everglades.
Chasing the waste
The amount of construction waste -- debris that includes lumber, drywall, bricks, asphalt and concrete -- generated in the U.S. has grown each year, to an estimated 136 million tons in 1997, compared to 209 million tons of municipal solid waste. The number will continue to climb with new construction projects, including a surge in road building in Florida. Under the nation's new highway spending bill, Florida will receive $1.2 billion a year to build, improve and maintain roads and highways; $450 million more than it got each year from 1991 to 1997. The tons of waste generated aren't likely to be a problem in more-urban areas, where construction recycling plants are convenient and illegal dumping gets noticed quickly, says Jim Bradner, solid waste program manager for the central Florida DEP district that includes urban areas such as Orlando and rural ones like Marion County. "But the farther you get from civilization, the more likely you are to find this stuff," he says.
DOT officials say it shouldn't be their problem. The agency has enough to worry about in making sure highways are built properly, says Greg Xanders, the state's construction engineer. It's not realistic for the agency to chase builders' dump trucks to make sure they're disposing of waste properly, he says. Some environmental officials disagree.
Chris Bird, director of Alachua County's Environmental Protection Department, questions why the DOT or attorney general cannot disqualify road contractors from receiving taxpayer dollars when they have been caught illegally dumping waste from work on government projects. "The threat of disqualification for contract work might be a much greater deterrent than the threat of environmental regulatory action or even criminal prosecution," he says.
Legally, the DOT's Xanders says, the agency cannot consider White's record because he's been convicted of no crime. Only if he had been would future contracts be in jeopardy. And even then, Xanders says, the company could shuffle officers' names and still qualify for state bids. Xanders says he tries to look at it as a taxpayer: the more regulations his inspectors have to track down, the less time they'll have to focus on the roads. "Yes, we can be the highway rent-a-cop," he says. "But that means you get less signals and sidewalks from the taxes you pay currently." He acknowledges the agency could require builders to turn in landfill receipts to show debris taken from state road projects is disposed of properly. "But I'd want a serious discussion," he says. "There's always a cost."
Smith, Bird and others say they're concerned with the costs to the environment. There has long been fear that piles of old pavement can leach toxins into groundwater, though a recent University of Florida study concluded that used asphalt is safe both to store and to use as construction fill. In the White case, however, officials say that point is moot because White was using the limerock pit as a dump not only for old asphalt but solid wastes, improperly stored fuel tanks, tires, 55-gallon drums and other potentially toxic material.
Environmental monitoring found no toxins at the site, which White Construction, under the deferred prosecution agreement, has now made clean enough to spread a picnic blanket on. Now that the case against her father and his business are over, White Construction Vice President Nancy White Bennett is candid about why the company dumped road waste in the pit for more than 20 years: "It was standard practice," she says, not just by White, but other Florida highway contractors. "The truth is you could go to any of these north Florida quarries and find the same thing," says Will Irby, executive director of the State Attorney's Office when the case began and now CEO of a private investigative firm.
Bennett, who serves on the board of the state Transportation Builders Association, says as word of her family's $2 million ordeal gets around, road builders will comply with laws on their own. "It's a different time," she says. "White has changed its practices around the state."