Thiele Legislation Would Grant Local Authority Over Sand Land Mine In Noyac

The Sand Land mining operation in Noyac. PRESS FILE

As litigation targeting the Sand Land mine in Noyac wends its way through the courts, and the Environmental Protection Agency looks into determining whether it could be deemed a Superfund site, State Assemblyman Fred W. Thiele Jr. is circulating new legislation that, if adopted, could provide more checks on the facility’s operations.

“The new legislation would implement the sand mining recommendations of the recent Suffolk County grand jury report on sand mining and illegal dumping,” he said this week.

In October 2019, Suffolk County District Attorney Timothy D. Sini announced the results of a yearlong grand jury probe into illegal dumping and other environmental crimes on Long Island. At the time, he called it “a wake-up call” and said, “If we do not take immediate action to increase law enforcement’s ability to hold bad actors accountable and deter environmental crimes from occurring, these acts could result in irreparable damage to our environment and to Long Island’s aquifer, the sole source of our drinking water.”

The grand jury concluded that protecting the environment of Suffolk County from illegal dumping and sand mining is “of paramount importance” because of the potential impact on the aquifer.

“The grand jury recognized that the current regulatory framework for sand mining is failing to protect our underground aquifer and putting our drinking water at risk. The new legislation would close loopholes in the current law and would restore jurisdiction to local government to ensure that sand mining does not jeopardize our drinking water supply,” Mr. Thiele explained this week.

The State Department of Environmental Conservation holds the authority when it comes to regulating sand mines. But regulatory efforts conflict with a state policy of promoting mining in the state, according to Bob DeLuca of the Group for the East End, one of several organizations and individuals that have been pushing for Sand Land’s closure since 2013.
Promotion of mining may be a good idea elsewhere in the state, but on Long Island, with its shallow depth to groundwater, it’s not, he said.

Mr. Thiele’s bill recognizes the differences in geography and population across the Empire State. Its focus is “the regulation of mining and the reclamation of mines within counties with a population of 1 million or more which draw their primary source of drinking water for a majority of county residents from a designated sole-source aquifer.”

Singling out Long Island as the region where the legislation would apply, the bill gives local municipalities the power to prohibit mining on properties where it would be inconsistent with water quality protection and public health, authorize groundwater monitoring at mining sites, and regulate mining reclamation.

Three provisions of the bill appear to specifically target the Sand Land operation. It gives local governments the authority to eliminate mining sites that are non-conforming under zoning regulations, where it is necessary to protect water quality. Sand Land has been in operation for decades and predates zoning, making it fall under the “nonconforming” designation.

In 2018, a cadre of environmentalists and concerned citizens gathered at the Old Noyac Schoolhouse to hear the results of water sampling tests conducted by a Maryland-based consulting firm. There, they learned levels of heavy metals and toxins that exceed federal drinking water standards — in some cases by orders of magnitude — were found in court-ordered test samples of both the surface and groundwater at the 50-acre site in Noyac.
Sand Land’s attorney Brian Matthews of Matthews, Kirst & Cooley, PLLC in East Hampton, refutes those findings. He said that the expert never undertook any testing and simply reiterated results of tests taken by Suffolk County, characterizing those tests as “highly questionable” and performed incorrectly.

Sand Land’s current permit mandates water tests undertaken by the company’s own expert. The most recent samples, taken in December, “refute all those claims,” Mr. Matthews said.

Mr. Thiele’s legislation offers protections to ensure water samples at the site continue to come up clean. It gives local municipalities the power to prohibit mining on contaminated sites where contamination exceeds state or federal water quality standards.

The processing of waste, an activity outside mining, and outside the site’s official permit, has been a cause for concern for Sand Land opponents for years. The DEC file on the 2019 modification notes an agreement dating to February 2019 in which Sand Land agreed to cease processing vegetative organic waste.

Inspections dated last year revealed the storage of materials prohibited under the current permit, and their subsequent removal.

However, a new permit modification, filed just this month, asks permission to bring the forbidden materials — crushed stone, crushed concrete aggregate and finished compost created offsite from yard trimmings, to create salable aggregate products and sand-based soils — to the site legally.

Mr. Matthews declined to comment on the pending application.

Mr. DeLuca, however, did. “It’s supposed to be a sand mine, not a retail operation,” he said. The environmentalist reported that during a recent inspection, “it turns out they were selling crushed stone and concrete aggregate and things they weren’t supposed to be doing. So instead of fining the facility, or bringing them into some kind of compliance, [the DEC] is allowing them to amend their permit to essentially legalize all the stuff they were doing in violation of the last permit.”

Adding another layer of protection, Mr. Thiele’s draft legislation would give local lawmakers the authority to regulate or prohibit the co-location of mines with facilities that receive and process waste.

The law provides that no state agency could process or approve any application for mining on Long Island where local laws prohibit it or where local government has denied a permit. Additionally, it states no state agency can approve a mining permit until after it’s been approved by local government. Local government determination and local laws related to mining would be binding upon the Department of Environmental Conservation, the draft legislation states.

Passage of the legislation would be “great,” Southampton Town Supervisor Jay Schneiderman said. “We thought we were able to process [the applications] now if ordinances are there, that prohibit mining, which they are, but that section of Environmental Conservation Law was never artfully written.”

That Mr. Thiele is “cleaning that up as to the powers of the town and the powers of the DEC, I applaud that, giving us the power to protect our aquifer,” Mr. Schneiderman said.
Southampton Town is among the organizations and individuals who launched an Article 78 proceeding last year, looking to overturn the DEC’s approval of a permit modification that would allow the mine to expand its scope of activity by an additional 3 acres and another 40 feet in depth, and remain operational for an additional eight years. The litigation continues to wend its way through the courts, injunctions granted last summer stay the expansion, but do not stop the DEC from continuing to process Sand Land’s application for a modified permit.

Looking at the latest filing, Mr. DeLuca asserted, “Every time the DEC is forced to admit they’re doing something out of compliance with their permits, the agency, rather than regulate the activities or penalize the operator, they simply re-frame the permit. ”

Frustration with the DEC and Governor Andrew Cuomo pushed local activists in the Noyac Civic Council to prevail upon the federal government, the Environmental Protection Agency, for relief, Council President Elena Loreto said.

“We are so frustrated and disappointed,” she said. “First with the DEC, and second with Governor Cuomo. He’s supposed to be the governor who protects our water — but he never responds to our letters, he never responds to our phone calls, he never responds to our emails.”

The group repeatedly requested meetings with representatives of the governor, but, Ms. Loreto said “the representative wouldn’t come, because we’re involved in litigation with the DEC.”

“We wanted someone who’s going to clean the water contamination and it doesn’t seem like the DEC,” she said. “The DEC is ignoring the contamination, so we contacted [U.S. Representative Lee] Zeldin’s office. We’re not asking for a lot — we just want clean water.”

“My office has heard from property owners, elected officials and environmental groups with regards to groundwater contamination at the Sand Land site impacting nearby private residential wells,” Mr. Zeldin said in response to an email query on Tuesday, January 28. “I was eager to elevate this to the EPA for Superfund site consideration to utilize all options to provide Noyac residents relief, and I look forward to the results of the EPA’s review.”

Ms. Loreto shared a January 7 email from Mr. Zeldin’s district director, Mark Woolley, dated earlier this month. In it, he said he’d received an update from the EPA saying that “they raised our inquiry with their Regional Administrator and their Superfund Division Director.”

“The EPA’s regional office team is still working on finding more information and has been coordinating with NYSDEC to learn more … We have EPA working on this matter, including their Superfund Division,” Mr. Woolley wrote.

A Superfund designation allows the EPA to clean up contaminated sites. It also forces the parties responsible for the contamination to either perform cleanups or reimburse the government for EPA-led cleanup work.

“The question of whether the property is a Superfund site has been answered for decades, Mr. Matthews said. “The property has never, ever been a Superfund site.”

In 1989, the DEC and the EPA conducted a preliminary investigation, he said. “They did a site assessment and found no reason to suspect hazardous waste on the site and the property was de-listed,” he said. “The current inquiry seems to be misinformed about the property’s history and ongoing water tests, all of which show no impact to the aquifer from the use of the property, and that there will be no impact from continued use of the property, and no restriction on their use.”

Asked to weigh in on an EPA assessment, and more eyes on the mine, Mr. DeLuca said: “At this point, the more, the merrier.”