Southampton Town has filed a lawsuit against the State Department of Environmental Conservation over its approval of a permit allowing a Speonk mine to excavate sand from below the groundwater table.
The state agency is currently reviewing a similar permit request for the Sand Highway LLC mine in East Hampton as well.
The DEC granted Huntington Ready Mix Concrete Inc. a permit renewal in March that allows the 13-acre Speonk mine to more than double its footprint and to excavate sand 40 feet below the groundwater table, creating a more than 5-acre “lake” in the bottom of the mine.
Earlier this month, the state allowed an application by the owners of the sand mine off Middle Highway in East Hampton to move forward without calling for an in-depth analysis of potential environmental impacts.
The East Hampton application — by Sand Highway LLC, which is owned by Patrick Bistrian Jr. Inc. — does not propose expanding the excavated footprint of the 11.6-acre mine, but it does request that the mining operation be allowed to remove sand from below the groundwater table, creating a 6-acre, 110-foot-deep lake.
Southampton is already embroiled in a lawsuit with the DEC over its granting of a permit extension to Sand Land, a Noyac mine where groundwater contamination has been detected. After initially denying the permit in the wake of the discovery of elevated levels of contaminants in groundwater beneath the mine, the DEC then granted an eight-year extension — and allowed the mine owners to dig down another 40 feet.
The town has now filed a similar challenge over the Speonk mine, claiming that the DEC is failing to follow state statutes in declaring these extended operations to simply be a continuance of the previous mining activities.
“There is a provision in the state law that says that if they deem it to be a new mine or a substantial expansion of an existing mine, it’s supposed to go to the town for a determination of whether the use is one allowed under zoning,” Southampton Town Supervisor Jay Schneiderman said. “Their argument is that this is a continuation of a nonconforming use.”
If the state were asked to permit a new mine, or one that it determined should be considered as new, then the local municipality would have to be referred to for zoning compliance.
Southampton Town Attorney James Burke said that he has spoken with the state attorney general’s office about clarifying the legal requirements of the statute as to what can be considered a continuation of mining that predates local zoning codes that would bar such activities today.
“Some of these expansions are so major, they should be seen as a new mine altogether,” he said.
The DEC has defended its practice of allowing sand mining from beneath water tables, which has drawn criticism from many corners. The agency has maintained a policy that such mining activities do not pose a threat of contamination to groundwater in themselves, and it classifies them as “unlisted” actions that do not require extensive environmental review if they are within an existing sand mine.
“[The] DEC is committed to conducting a thorough environmental review of the proposed mining permit application submitted by Sand Highway LLC to ensure the continued protection of natural resources, including water quality, and public health,” the agency said in a statement sent by its communications office.
It continued: “In addition to DEC’s review, the agency will be accepting public comments on the application until September 27, 2019, before making a determination on whether to issue the modification. [The] DEC continues to provide rigorous oversight of the mine operations to ensure it meets the existing permit requirements that are protective of the environment.”
There are already three other mines currently in operation in Suffolk County that draw sand from the bottom of steadily deepening man-made lakes, created as groundwater flowing naturally through sandy soil seeps into the hole dug by excavation machines. As the lakes deepen, floating hydraulic dredges similar to those used to clear sand shoals from navigation channels are used to suck sand up and pump it onto land to dry.
None of the mines currently operating within groundwater has a permit to go as deep as has been requested at Sand Highway.
The Sand Highway application says that when the limits of the new excavation are completed, the “lake” will become habitat for wildlife. East Hampton Town dismissed this claim, noting that the lake would be too deep to develop a typical freshwater ecosystem, and that it would pose a distinct hazard.
East Hampton Town Supervisor Peter Van Scoyoc said that the town has asked to see the documents on which the state based its analysis of the Sand Highway application. He said the town’s official position currently is that it should be an involved agency in the review. He said the town would not rule out a legal challenge if the application to expand the mine, which is in the midst of a residential neighborhood, is ultimately approved.
Along with the conflicts over specific applications, both East Hampton and Southampton towns are working on legislation that will take advantage of new state statutes — adopted in the wake of the Sand Land battle — allowing local municipalities to demand groundwater monitoring in and around mine operations they fear might be causing groundwater contamination.
East Hampton Town is still working on first drafts of the legislation. Southampton Town introduced a law earlier this year and has made several modifications thus far.
Mr. Schneiderman said he hopes the town will have a final version ready this year.
“We will be requiring monitoring around these facilities — but enforcement is the big hangup,” he said. “We have to figure out to what degree, if we are seeing contamination, can we force them to cease operations. There are a lot of jurisdictional questions. We’re working with the industry and environmental groups now to figure out what is possible without overstepping our authority.”