A view of the CMA Mine site on Osborn Avenue in Calverton on Sept. 19, 2019.
Google Earth satellite image.

Riverhead Town has joined with other East End towns in an amicus (“friend of the court”) brief supporting the Southampton Town in defending an appeal brought by a Noyac sand mine operator.

The appeal by the mine operator, Sand Land Corporation and Wainscott Sand & Gravel Corp., is now pending before an appellate court in Brooklyn. Sand Land is asking the appellate court to vacate an injunction granted by the trial court that prevents Sand Land from processing trees, brush stumps and other debris at the 50-acre mine site while the litigation continues.

The Sand Land mine has a long history of litigation with Southampton Town and residents who live near the site, where a sand mining and gravel business has operated continuously since at least 1963, according to court documents. Sand Land Corporation bought the property in 1990. The site operates as a pre-existing, non-conforming use under the current zoning ordinance. Zoning on the site was changed from industrial to residential in 1972.

Wainscott Sand and Gravel conducts the mining and reclamation operation under a mining permit issued to Sand Land by the State Department of Environmental Conservation. The site was also registered by the DEC to conduct certain solid waste management services, including the receipt of uncontaminated concrete, asphalt, brick, soil, rock and untreated wood. However, under an agreement with the state agency in February 2019, the operator relinquished its registration and no longer has any vegetative waste material on site.

The Sand Land operation illustrates the need for more local control over mining operations on Long Island, in order to protect the island’s drinking water supply, according to Assembly Member Fred Thiele and State Senator Ken LaValle.

Suffolk County had to go to court to gain the right to test the groundwater at the Sand Land site and ultimately “found pollution well in excess of drinking water standards,” Thiele said.

LaValle and Thiele got legislation passed in 2018 authorizing local laws requiring groundwater monitoring to determine impacts of mining and/or mine reclamation on Long Island. The governor signed their bill into law.

Mining on Long Island poses risks to the sole-source drinking water aquifer in two ways. First, it often involves digging a large, deep hole penetrating close to — sometimes even into — the groundwater table. Second, mining requires reclamation, a process that typically involves filling the hole with materials brought in from other sites. The imported materials may pose a pollution threat to the aquifer beneath the mine.

Local municipalities are essentially cut out of the review and permitting process for mining and mine reclamation and have no authority to enter onto mine sites to inspect and test materials being imported as fill or to monitor groundwater on the sites.

New legislation Thiele and LaValle got passed in in July — by a near-unanimous vote of the legislature — was this month vetoed by the governor. It would have given local municipalities concurrent jurisdiction with the State DEC over sand-mining on Long Island.

“The bill implemented the specific recommendation of a Suffolk grand jury report on sand mining and illegal dumping issued in 2019,” Thiele said, noting that East End towns are challenging state mining approvals issued by the state DEC for failing to consider local laws and regulations that protect our environment.

The State DEC was opposed to the measure, Thiele said.

“Following rigorous environmental reviews of sand mining proposals, DEC includes stringent requirements protective of the environment – especially Long Island’s aquifer – and provides strict oversight of operations,” the DEC said in a statement.

“We continue to hold bad actors accountable and oversee sand mines and other legal, regulated operations to ensure public health and the environment are protected.”

The legislator said he offered a compromise that would have directed the DEC, the state Health Department and local health departments to study the impacts of mining on drinking water and make recommendations to the governor and state legislature.

The compromise language would also have required a moratorium on mining at sites where the DEC or a local health department had documented pollution that exceeded state or federal drinking water or groundwater standards. Thiele said the DEC was opposed to the temporary moratorium.

“This compromise would have permitted responsible sand mines, which are critical to the local economy, to continue,” Thiele said. “Neither the original bill, nor the compromise posed any threat to responsible sand mine owners. The only ones who would have need to fear the new regulations would be the polluters,” he said.

In his veto message, Gov. Andrew Cuomo said the state’s existing “robust regulatory framework under existing law” is sufficient to adequately address adverse impacts to the island’s sole source aquifer from sand mining.

“In light of the questions that have arisen in recent years regarding the compatibility of co-locating non-mining activities, such as organics processing, at sand mines on Long Island, a comprehensive review of water quality in the vicinity of mine sites is necessary to ensure protection of public health and the environment,” the governor said.

Cuomo directed the DEC, in consolation with the State Department of Health, to study the impacts to groundwater quality resulting from sand mining on Long Island. He directed the agency to solicit feedback from “relevant stakeholders,” including county health departments, hold at least one hearing to solicit comment from the public, and consider at least three years of data to determine groundwater conditions in and around the mines. At the conclusion of this study, the DEC will provide the public with a report of its findings, Cuomo wrote.

Riverhead Town over the past couple of decades has found itself at odds with the State DEC over mining operations in Riverhead that were issued permits by the DEC — even despite zoning by the town that outlawed new sand mines in Riverhead. The town was involved in lengthy — and costly — litigation over these issues and is about to bring another lawsuit against the DEC over a mine expansion in Calverton.

The Riverhead Town Board on Nov. 17 authorized the hiring of a Ronkonkoma attorney to pursue litigation agains the DEC in connection with the mine expansion.

CMA Mine has applied to the DEC for a permit to expand an existing 15-acre mine vertically, excavating to a depth of 100 feet — 89 feet below the groundwater table.

The mine site is located on the corner of Youngs and Osborn avenues, immediately adjacent to the closed and capped Riverhead landfill. The landfill was ordered closed by the state under the Long Island Landfill Law, a groundwater protection measure that required most solid waste landfills on the island shut down in December 1990. The old Riverhead landfill is not lined and thus is not equipped with a groundwater protection system to collect rainfall that percolating through the wastes buried there, potentially picking up contaminants on its way down to the water table.

Riverhead officials are concerned that the excavation into groundwater on a site adjoining the old landfill may draw contaminated liquids out of the town-owned site and pose a risk to private and municipal drinking water wells in the vicinity. That concern was one of the town’s reasons for seeking lead agency status under the State Environmental Quality Review Act to review the CMA Mine expansion application.

But DEC Commissioner Basil Seggos did not agree and on July 29 denied the town’s request and granted lead agency status to the DEC regional office on Long Island.

Two months later, on Sept. 29, the DEC determined the proposed mine expansion would not have a significant effect on the environment — thereby dispensing with the need for an environmental impact study.

Three weeks after that, on Oct. 21, the DEC issued a notice of complete application, which means the agency determined that it has everything it needs to make a decision on the application. To date, there has been no public disclosure of the application being granted.

The DEC has not provided documents from the application file requested by RiverheadLOCAL in an Oct. 22 Freedom of Information Law request. It has extended four times the anticipated time it needs to provide the requested documents: the application, the full environmental assessment form, comments submitted by involved agencies and any permit issued by DEC in connection with the proposed vertical mine expansion.

The lawsuit authorized by the Town Board last month has not yet been filed, Riverhead Supervisor Yvette Aguiar said on Tuesday. The law firm is doing its research, she said, and will discuss with the town board its approach.

But signing on to support Southampton in the Sand Land appeal is important, the supervisor said.

“The supervisors of the East End are joining forces together,” Aguiar said. “We’re going to be very strong in this effort.”

Thiele, meanwhile, has vowed to re-introduce his mining legislation in the new legislative session, which begins Jan. 4.

Aguiar said she is “in total support” of Thiele’s bill.

“All municipalities should have a say in how to maintain our water quality,” Aguiar said.

“I’m taken back by the veto,” the supervisor said. “The DEC is tasked with water protection. At the same time they opened the floodgates to not protecting our water quality,” she said.

“It appears to me there’s a conflict here. How do you protect our water but allow mining and possible damage to the aquifer?” Aguiar asked.

“The commitment of the State DEC to clean water is empty rhetoric,” Thiele charged. “By opposing this legislation, the state agency whose mission is the protection of our drinking water is instead protecting the polluter,” he said.

“We are spending hundreds of millions of dollars to reverse the trend of declining water quality. Those dollars are a wasted investment if at the same time we permit polluters to conduct business as usual,” Thiele said.

Editor’s note: This story was updated post-publication to include a response from the State DEC. It was also corrected to reflect a February 2019 agreement between Sand Land and the DEC under which the operator relinquished its solid waste registration.

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Denise is a veteran local reporter, editor, attorney and former Riverhead Town councilwoman. Her work has been recognized with numerous awards, including investigative reporting and writer of the year awards from the N.Y. Press Association. She is a founder, owner and co-publisher of this website.Email Denise.