Stunned by state DEC Commissioner Basil Seggos’s agreement last month to ignore previous DEC rulings and let the Wainscott Sand & Gravel company to continue in operation for eight more years and dig 40 feet deeper including in a three-acre area previously off limits in its Sand Land mine in Noyac, an alliance of opponents is asking the State Supreme Court in Albany “to annul, vacate and in all respects void” the DEC action.
They allege the DEC settlement is illegal and based on falsehoods “in order to circumvent” previous decisions by the DEC’s executive deputy commissioner and its chief administrative law judge that would have led to the mine’s closure and reclamation.
The parties are next due in court on April 30 for a conference before Judge James Ferreira, who is scheduled to hear arguments on May 3 why Sand Land should not be barred from mining anywhere outside the 31.5-acre area and depth to 160 feet above sea level allowed under its previous and now expired five-year permit.
The court will also weigh why the DEC should not be enjoined from “continuing to process” Sand Land’s pending application for a permit to continue to mine in the expanded area.
The alliance of petitioners includes the Golf at the Bridge golf course and other nearby property owners, State Assemblyman Fred W. Thiele Jr., the Town of Southampton and four civic and environmental groups — Citizens Campaign for the Environment, Group for the East End, the Noyac Civic Council and the Southampton Town Civic Coalition.
Citing a 2018 county water monitoring report that found toxic chemicals in the aquifer under the mine, they argue that its operation — including residues from it former demolition and vegetative waste processing facilities — has polluted groundwater and the soil under the site and poses a continuing environmental threat to the area.
Wainscott Sand & Gravel owner John Tintle has strenuously denied that his mine has caused any groundwater pollution.
Just last September, the same alliance of mine opponents were celebrating a milestone victory after years of legal strife when Daniel Whitehead, director of the Division of Environmental Permits at DEC headquarters in Albany, wrote the company that its request for a new and expanded state mining permit was denied.
“Sand Land has only de minimus reserves of sand left for mining purposes,” he wrote, “and areas where mining could occur are the subject of groundwater monitoring investigations.” Instead, he wrote, the DEC “seeks modification of Sand Land’s Mine Permit to require the cessation of mining activities and the initiation of steps to reclaim the site.”
Asked for comment, Mr. Tintle at the time said he would not respond to inquiries fromThe Sag Harbor Expressbecause he had found its coverage of the mine unfair.
In a statement to the press in September, an unnamed spokesperson for the DEC said that “based on continued concerns regarding the facility’s impacts on the environment, DEC is seeking to modify this facility’s permit to require the cessation of mining operations and require completion of reclamation within two years. We are continuing to use all legal tools available to address concerns over the facility’s continued operation and will take all actions necessary to ensure the public and the environment are protected.”
When news broke in March that the DEC was reversing itself and allowing the mine not only to continue in operation but expand, Assemblyman Thiele wrote the DEC’s deputy permit administrator Mark Cararra, calling the agency’s decision “one of the greatest about faces in New York State history. Instead of shutting down a polluting industrial facility over a sensitive groundwater reserve, as the DEC had originally determined, the DEC has entered into a settlement with the applicant to permit both the vertical (40 feet deeper) and horizontal (three additional acres) expansion of the mine. In addition, the settlement would authorize the facility to operate for eight more years.”
Town Supervisor Jay Schneiderman also wrote the DEC to challenge the turnaround.
One of the attorneys handling the alliance’s lawsuit in Albany, Claudia K. Braymer of Braymer Law, PLLC in Glens Falls, commented Monday, “It is incomprehensible to us why DEC would change its position so quickly on something as important as this particular project.”
She added that the DEC, during a conference held before State Supreme Court Justice Kimberly A. O’Connor on April 18, had “made some vague reference to additional information that they had obtained since September but they did not disclose to the parties or the court what exactly that information was or is.”
Asked to comment on what appeared to be an abrupt and unexplained reversal in the DEC’s position, Maureen F. Wren, the director of DEC media relations in Albany, responded by email on Monday:
“While DEC cannot comment on pending litigation, our comprehensive settlement has put this facility on the path to closure and secured the most stringent and aggressive oversight and protection of water quality over any facility of its kind in New York State. DEC will continue to be a regular presence on the site and will take immediate action if any violations are found.”
Mr. Thiele, in a phone interview Tuesday, commented that the DEC’s shift on the Sand Land matter “is the dictionary definition of ‘arbitrary and capricious’.”
In response to the lawsuit — an Article 78 petition challenging a governmental decision as “arbitrary and capricious” — the DEC voluntarily agreed on April 18 before Judge O’Connor to extend the public comment period on its plan to allow Sand Land’s mining operations continue from the previous April 19 deadline to May 3.
Also at the conference, Sand Land voluntarily agreed not to mine in the area known as the “stump dump” through April 30. The site, not previously included in the area where mining was allowed, is included in the DEC’s new permit for the mine.
Following the conference, Judge O’Connor ordered Sand Land and the DEC to show why the company should not be barred from mining anywhere outside its previously permitted area and why the DEC should not be enjoined from “continuing to process” Sand Land’s application for a new, expanded permit.
She moved the case to Justice Ferreira’s court because he has been presiding over a similar but separate case, according to Ms. Braymer.
At the conference set for April 30, Ms. Braymer said she expected the DEC and Sand Land to ask for a delay before arguments on the merits of the case begin. She said she and other attorneys representing the petitioners would oppose the call for a postponement.