Southampton Town Mine-Monitoring Law Draws Support, Criticism

The Sand Land Mine looking northeast toward Noyac Bay (left) and North Haven-Bay Point-Sag Harbor (center top). The Golf at the Bridge golf course and former racetrack is at left. Peter Boody photo

The voices shouting down local sand-mining operations have been fairly loud lately, but the Southampton Town Board on Tuesday also heard the other side of the debate during a public hearing on proposed legislation to add mandatory groundwater monitoring at mines in the town.

The board is proposing a new chapter in its town code made possible by a state law enacted late in 2018 that allows municipalities in counties with populations of 1 million or more or which draw their drinking water from a sole source aquifer — which qualifies Suffolk County, and thus Southampton Town — to mandate such monitoring at mines.

While the proposed legislation does not set up a specific program for mines in general, it imposes a minimum of three test wells on each site that must be sampled at least twice per year. The mine operators would develop their own monitoring plans and submit them to the town, which could have a third-party expert review them, and modify them if necessary, before they are approved by the town board.

Two attorneys representing various mines in Southampton Town as well as Stan Warshaw, owner of Hampton Sand Corp. in Speonk, told the town board they are not opposed to groundwater monitoring, but said the proposed rules are flawed.

“No local government can control the processes and operations of a mine that is controlled by state statute, regulation or permit,” said David Eagan, an attorney from Wainscott who represents East Coast Mines and Materials in East Quogue. “The concept of groundwater monitoring is not an issue. These provisions are, and they are overreaching.”

Mr. Eagan asserted that “there is no established scientific basis that sand mining negatively impacts groundwater.”

“In the interest of getting this right and making this work for everyone, we would ask you to consult with the [Department of Environmental Conservation] on this issue,” he said, and added he and his client would be willing to sit down with town officials to resolve alleged discrepancies “in a way that benefits everyone instead of creating more litigation.”

Mr. Warshaw agreed with Mr. Eagan’s suggestion that sand is clean and said “maybe it’s rainwater, maybe it’s something down the street” that is causing contamination in some areas.

“We have to figure it out,” Mr. Warshaw said. “We’re all going to do it. We’re not contaminating. One guy has a problem … we’re willing to solve it.”

He said sand is a necessity in building, beach reclamation, road construction and more, and objected to the town’s imposition of mandatory groundwater monitoring requirements.

“Things have to be practical,” Mr. Warshaw said. “Sit down with all of us.”

Attorney Kevin Brown, representing two additional mines in Southampton Town as well as some in upstate New York, said, “We think you’ve run up against preemption in state law.”

He also encouraged the board to include specific timelines for remediation in the proposed monitoring rules in cases when contamination is discovered.

“To have a remediation plan, first you have to know what you’re remediating,” Mr. Brown said. “Groundwater is complex. These are disfavored uses, but necessary uses. What I always find is the best way to fix issues with neighbors, municipal boards and environmental advocates is to get to the science.”

Several residents and experts spoke up in favor of the proposed legislation.

Kevin McAllister, executive director of the nonprofit organization Defend H2O, lauded the town board for taking action, and suggested pesticides be factored into the groundwater monitoring requirements. He also asked for clarification on whether the monitoring would include both point-of-origin contamination and pass-through contaminants from adjacent properties.

“I think the devil is in the details,” Mr. McAllister said. “We’ve got to be very thoughtful in the depth and location of the wells. We need to flesh out through historic use what is happening on these sites. This is truly an emerging issue.”

Bob DeLuca, president of the nonprofit Group for the East End, urged the town board to increase the proposed monetary penalties for violating the groundwater monitoring rules. Currently, the legislation has them written as $3,500 for a first offense and between $2,000 and $30,000 and a formal misdemeanor charge for second and subsequent offenses. He also suggested enacting a companion law that would strictly regulate or sunset mining permits.

“As it did with nightclubs, amortization laws seem like they would be appropriate here,” Mr. DeLuca said.

Linda Giordano, a Noyac resident, made an emotional plea to cut off all sand mining in the town.

“We have a paradise here and you’re letting it slip by. Help protect it,” she implored. “Just do it. Stop this sand mining.”

Elena Loreto, president of the Noyac Civic Council, which has joined Southampton Town, Group for the East End and several other entities in suing the DEC and the Sand Land mine in Noyac, called the town’s proposed legislation “a necessary next step … to monitor what is going on all the time, not just when a lawsuit makes it necessary to monitor it.”

The town board voted 4-0, with member Christine Scalera absent, to hold the public hearing over to its May 14 meeting. Ms. Scalera is the sponsor of the legislation.