East Hampton Town Will Sue State Over Sand Mine Approval

East Hampton Town will sue New York State over the approval of a proposal to mine sand from within groundwater, creating a 6-acre, 100-foot deep lake on the property.

East Hampton Town will sue the New York State Department of Environmental Conservation to overturn its approval of a sand mine owner’s request to be allowed to dig into the groundwater table, creating a 6-acre, 100-foot-deep “lake” of exposed groundwater.

The Town Board last week unanimously authorized its attorneys to proceed with legal action against the state and, possibly, the mine owner, Patrick Bistrian Jr. Inc, which owns the mine on Middle Highway that is known as Sand Highway LLC.

Supervisor Peter Van Scoyoc said the town will pursue an injunction to halt any of the new mining allowed under the newly approved permit while a court is asked to determine whether the DEC correnctly applied the state’s own legal guidelines in reviewing the application.

“We think it’s pretty clear the DEC went about this very wrong,” Mr. Van Scoyoc said this week. “This is in a groundwater protection area, its within the draw area for the [Suffolk County Water Authority wells] and it’s the expansion of a pre-existing non-conforming use.”

“And to issue this approval during a pandemic,” he added, “just seems very cynical.”

The DEC granted Sand Highway a “modification” to it’s mining permit on April 1, even though state offices were closed as the coronavirus epidemic was exploding in the state.

The original mining permit was issued in 1984 to David L. Talmage, allowing 11.6 acres of the 14-acre property to be mined to a depth of 40 feet. Mr. Talmage only mined a fraction of the allowable area in the ensuing decades, but since it was taken over by the Bistrian company, the disturbed area has doubled in size and is quickly approaching the limits of the original permit.

The modified permit allows for sand and gravel to be mined to a total depth of 150 feet in a portion of the property, or about 100 feet below where the water table in the area lies.

The state has allowed sand mines on Long Island to extend below groundwater in several instances, most on a much larger scale than the Sand Highway operation. The DEC maintains that with proper precautions regarding the use of mining machinery and limitations on other uses of the mine property, simply exposing the naturally flowing groundwater table does not pose an inherently elevated threat of contamination.

“The modification does not authorize horizontal expansion of the mine site, increase the rate of extraction, nor allow the importation of off-site material,” a DEC spokesperson said in a message. “DEC conducted a technical review of the proposal and added conditions to the modified permit to protect environmental resources and ensure public safety. … To verify the mine is not impacting groundwater, DEC requires the operator to sample six on-site monitoring wells quarterly when mining activities reach groundwater. These samples must be analyzed by a certified laboratory for total and dissolved metals, [volatile organic compounds] and [semi volatile organic compounds], and the results must be provided to DEC for evaluation. Currently, the mine operator is sampling and testing groundwater biannually. DEC issued the permit and will continue to inspect the facility and review water quality testing results to ensure public safety and the environment are protected.”

The DEC has come under fire from environmental groups and local governments for its permissive stance with regard to the continued operations of mine properties in recent years — highlighted by the legal warfare between the state agency and Southampton Town over the Sand Land mine in Noyac — and concerns over water pollution. Suffolk County issued a sprawling report last year on mining operations county wide that cataloged water quality problems caused by mine properties, mostly due to activities like composting that are conducted at them after they have exhausted their allowable mining supplies.

Indeed, the Sand Highway permit was granted over a deluge of objections submitted to the state by the town, the Suffolk County Water Authority, environmental groups and neighbors.

Objections focused on the fact that the mine sits in a designated groundwater protection area, which demands that extra care be taken to protect the groundwater table from contamination, and that it sits just a short distance from one of the SCWA’s drinking water well fields that serves thousands of area homes.

The town has also said that the “lake” created on the property would create a safety hazard, because of fears that children or others could trespass onto the property and potentially drown its depths. The lake’s bottom, Mr. Van Scoyoc said, would be beyond the reach of police and fire department dive teams searching for a missing person.

The permit application says that when mining operations are ultimately completed at the site that the aquatic vegetation plantings would make the lake a natural habitat. But the town has said that a 100-foot-deep lake’s steeply sloping sides would never support any kind of natural features or habitat of any value.

Mr. Van Scoyoc said he was not sure when the town’s attorneys would file the petitions to the court, but that the paperwork was already being drafted.