Riverhead hauls DEC into court over Calverton mine expansion

Charging the State Department of Environmental Conservation with flagrant violations of the state law, Riverhead Town is asking a court to nullify the agency’s decision against an in-depth environmental review for the expansion of a Calverton mine to a depth 89 feet below groundwater.

Riverhead filed a petition in State Supreme Court last week, asking the court to void the DEC’s Sept. 29 negative declaration-determination of non-significance with respect to the application of CMA Mine to expand an existing mine at a site adjacent to the town’s closed and capped landfill. The suit also names the mine operator as a defendant.

The DEC processed the application in direct violation of New York State Environmental Conservation Law, which prohibits a state agency from processing a mine permit application if a local zoning ordinance prohibits mining uses, the petition argues.

ECL Section 23-2703(3) was “enacted specifically to provide Long Island municipalities … with a gatekeeping role to guard against the encroachment into its sole source aquifer by mining expansions into areas previously not permitted which were not permitted under Town zoning law or ordinance,” the petition states.

DEC’s own technical guidance document for the implementation of that statute requires DEC’s Region I office, which covers Long Island, to inquire of the town supervisor whether local ordinances prohibit mining uses.

The guidance document states “the Department will rely exclusively on the local government [chief administrative officer’s] determination concerning prohibition and will not involve itself in matters of dispute between local government and the applicant. Upon receipt of the Statement of Local Prohibition, [DEC must] declare the application incomplete and notify the applicant that processing cannot go forward unless local prohibition is removed.” The document also states that if the local government’s comments on a mine application — as Riverhead’s did — “contain a Statement of Local Prohibition,” the department must “stop processing the application based solely on the determination that mining is prohibited.”

DEC did not inquire as to whether local zoning laws or ordinances prohibit mining usages in the area CMA proposes to mine.

In fact, Riverhead Town code prohibits new mining uses and requires a special permit from the town board for the expansion of any pre-existing nonconforming use. If the mine CMA seeks to expand is a pre-existing nonconforming use — which the town does not concede — the proposed modification requires a special permit from the town board. CMA has not applied for a special permit.

DEC’s obligations to inquire about a local prohibition and to stop processing the application were affirmed in two binding 2018 decisions by DEC’s chief administrative law judge in the appeal of Sand Land Corporation in the Town of Southampton.

In a separate case, Town of Southampton v. Huntington Ready Mixed Inc., the DEC conceded it was aware of that obligation. The Region I deputy permit administrator, in an affidavit filed in that case stated, “Thus, upon receipt of an application to mine any property or portion of a property not previously permitted, DEC must issue notice of such application to the chief administrative officer of the applicable local government.” The official went on to quote the technical guidance document.

‘Manifest error’

Yet the DEC ignored its legal obligations with respect to the CMA Mine application — by failing to inquire with the town supervisor and by continuing to process the application, “ultimately resulting in the wrongful and flawed issuance of a Negative Declaration,” the petition states.

The DEC commissioner, in his lead agency determination — ruling against the town when it disputed the DEC’s claim to lead agency status for purposes of environmental review — failed to consider the mandate of Section 23-2703(3), which the petition calls “manifest error.”

The town is not yet challenging the commissioner’s lead agency determination, though it believes the commissioner wrongfully denied its lead agency request, the petition states, because it does not believe the decision is “ripe for review at this time.” The town “reserves the right to challenge the lead agency determination as such time as it becomes ripe,” the petition states.

In addition, according to the petition, the DEC failed to take the “hard look” at environmental concerns as required by the State Environmental Quality Review Act.

In particular, the petition argues, the DEC failed to examine the “significant areas of environmental concern presented by the unique situation involving the presence of a closed and capped town-owned landfill immediately adjacent to the mine’s premises,” even though the town asserted those concerns to the DEC “repeatedly,” the petition states.

Of particular concern is the “strong potential” for the groundwater flow direction to move towards any exposed ground water lake created at the site, the petition states — a condition known as “gaining stream, which is generated by the change in hydraulic gradient between the properties of the aquifer and the proposed lake once the geological materials separating the aquifer from the new surface water feature are removed.”

Concern mine will draw landfill plume into aquifer

This condition will draw landfill leachate toward the proposed lake and provide “a major pathway for chemical transfer” that could impact the aquifer, according to the petition.

Post-capping sampling, done on a quarterly basis, of 10 landfill monitoring wells, has shown exceedances for metals that have also been detected in the mine’s monitoring wells — as well additional parameters, such as phenols, ammonia and nitrate, according to an assessment prepared by a DEC staff hydrogeologist.

A report prepared for CMA by its consultant, ZEB Environmental Solutions, said “exceedances of. .. antimony, iron, lead, manganese, sodium, thallium, ammonia, nitrates and phenols were all reported during routine landfill monitoring from 2015 to 2018.” It also said semi-volatile organic compounds, volatile organic compounds or pesticides were detected, though they did not exceed NYSDEC standards.

The ZEB report is “a clear recognition that the contaminants located in the nearby shuttered Riverhead landfill may have flowed to areas under the mine and impacted the groundwater,” the petition states.

“By virtue of the planned increase to the depth of the existing sand mining to now pierce the water table, in essence to permeate directly into the unconfined aquifer below, there exists a real and significant risk of further contamination to the upper glacial aquifer,” the petition states, citing the affidavit of Riverhead Water District Superintendent Frank Mancini, a licensed geologist.

Mancini in his affidavit said the DEC failed to acknowledge “that the contamination plume which has been found to exist underneath the Riverhead landfill by [CMA’s] own experts will likely travel as a result of the increased vertical mining activities of [CMA’s] mine… The failure to even consider or make reference to this eventuality is surprising as it has stood as a major impediment to the town’s efforts to permit a well located near the former Grumman facility in Calverton, New York,” Mancini said.

“Such efforts by the town have been repeatedly denied by the DEC on the grounds that interfering with the existing flow of water so close to a superfund site, like the Grumman facility, would pose a significant risk and cause existing plumes of contamination to travel into the aquifer,” Mancini said in his affidavit.

The petition attacks what it calls erroneous and incorrect statements in CMA’s application documents, which indicated both that the mine expansion is permitted under the town zoning code and that it is consistent with the town’s adopted comprehensive plan.

The mine is located in a special groundwater protection area designated by the State Environmental Conservation Law and the comprehensive plan addresses special groundwater protection area requirements.

Because the mine is located in a special groundwater protection area, the DEC, as the state agency charged with protecting the environment, has a duty of “heightened vigilance” in reviewing a proposed action such as “CMA’s major mine expansion into and through groundwater,” which has the potential to “cause or exacerbate contamination from toxic organic compounds, nutrients, salts, and other pollutants,” the petition states.

The DEC in a statement defended its practices and procedures.

“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. 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 agency said. “DEC cannot comment on pending litigation.”

Toqui Terchun, president of the Greater Calverton Civic Association welcomed the lawsuit.

“Protection of our groundwater should be of paramount importance to the DEC and, from what I understand, they did not do a thorough enough analysis to say there were no potential negative impacts from this proposed mining operation,” Terchun said.

The Law Offices of Thomas M. Volz of Nesconset is special counsel to the Town of Riverhead for the action.

The first court appearance is scheduled for March 11.

Editor’s note: This article has been updated with a comment from the N.Y. State DEC submitted post-publication.