Judge Blocks DEC’s Permission for Sand Land to Keep Digging

The Sand Land property in Noyac in 2016 photo. Michael Heller PHoto

In what Assemblyman Fred W. Thiele Jr. calls “a major victory for the environment, our drinking water, and the community at large,” a state Supreme Court judge in Albany on Friday, May 31, blocked the state DEC commissioner’s March 2019 agreement to allow the Sand Land mine in Noyac continue in operation for eight years and even expand its operations.

Under the terms of a preliminary injunction issued by Acting Justice James H. Ferreira, Sand Land is forbidden from sand mining beyond the limits of the depth and acreage limits of its last valid permit.

“Petitioners have demonstrated a probability of success on the merits of their challenge to the settlement agreement and renewal permit,” the judge wrote, “… as an unlawful expansion of the mined area … without regard to the notice and procedural requirements of the Environmental Conservation Law.”

Stunned by state DEC Commissioner Basil Seggos’s agreement to ignore previous DEC rulings and let the mine’s owner, Wainscott Sand & Gravel company, continue mining at Sand Land for eight more years, dig 40 feet deeper and expand into a three-acre area known as the “stump dump” previously off limits, an alliance of opponents in April asked the State Supreme Court in Albany “to annul, vacate and in all respects void” the DEC action. They also sought a preliminary injunction to bar the agreement from being implemented while the case is pending in court.

In their suit, they allege the DEC agreement 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.

They assert that expanding into the stump dump would unleash pollutants into the groundwater from past vegetative waste processing activities there.

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.

Last September, Mr. Thiele celebrated what he called “the beginning of the end” for the mine when Daniel Whitehead, director of the Division of Environmental Permits at DEC headquarters in Albany, wrote the company that its application for a new and expanded state mining permit had been 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.”

The DEC commissioner’s March agreement to grant a new, expanded permit after all is characterized as a “settlement” of Sand Land’s administrative appeal of the September ruling. Sand Land agreed in the settlement to cease operations within eight years, which the DEC commissioner hailed in a press release as an environmental victory.

Commenting on the injunction in a statement on Monday, Mr. Thiele wrote, “The state DEC got it right the first time in September, 2018, when they issued a determination to close the mine. Their decision six months later, behind closed doors, to reverse field and permit the expansion of mining was inexplicable. Even worse, the state DEC attempted to deceive the public and elected officials by characterizing the settlement” in a press release “as closing the mine.

“They never mentioned the three-acre horizontal expansion and attempted to characterize it as a ministerial change,” Mr. Thiele added. “We thank the court for enjoining this mistake and maintaining the status quo until the merits can be considered. We are confident that when the merits are considered, the mine will be closed.”

In his decision to issue the temporary injunction, Justice Ferreira wrote that the petitioners had a likelihood of success in showing the court that the stump dump was off limits under the terms of previous DEC permits and that allowing the mine to expand violated state law and would cause “irreparable harm” to the environment.

He cited the affidavit of Dr. Stuart Z. Cohen, a certified groundwater expert, that sampling data at the mine showed “manganese concentrations that exceeded DEC standards in four of nine wells, with the level 87 times the applicable standard”; “highly elevated” levels of radionuclides; “quantifiable concentrations” of thallium, which Dr. Cohen called “a highly toxic chemical”; four wells had nitrate-nitrogen levels that exceed standards; and that four of six surface water samples “exceeded standards for arsenic, five of six samples exceeded standards for manganese and four of six samples exceeded standards for lead.”

John Tintle, owner of Wainscott Sand & Gravel, has strenuously rejected studies showing extensive pollution in ground and surface waters at the mine. He has said his own data shows pollution only at one well close by the site’s boundary with the Golf at the Bridge golf course.