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Oct 6, 2019 7:16 PMPublication: The Southampton Press

East Hampton Says State Environmental Agency Is Failing To Protect Environment In Mine Review

The sand mine on Middle Highway in East Hampton. The owner has proposed mining sand down 110 feet, creating a 6-acrew lake out of exposed groundwater.
Oct 7, 2019 4:51 PM

East Hampton Town officials have told the New York State Department of Environmental Conservation that the town believes the state has erred badly in ruling that an application to mine sand from within the region's water table may proceed without extensive new environmental examination.

The town's objections would seem to catalog the building blocks of a legal challenge to an approval should the DEC issue one, but town Supervisor Peter Van Scoyoc said town officials have not discussed a potential lawsuit.

“We think there are procedural issues with the DEC's process and I don't think they made the correct determination under the statute — so that's the starting point right now,” Mr. Van Scoyoc said this week of the application from Sand Highway LLC for its property on Middle Highway. “The statute says that they have to declare a positive declaration under [the State Environmental Quality Review Act] if there may be significant environmental impacts. We think it's pretty obvious, based on the proposal, that there may be significant impacts and, in fact, that there are likely to be significant impacts, so we're going to press to have that overturned.”

The town has said that the DEC is ignoring the guidance of state law in making the determination that creating a 6-acre, 110-foot-deep lake by digging into the groundwater table less than a mile north of East Hampton Village is unlikely to have significant impacts and has demanded that the DEC hand over all the documentation it used to make its “negative declaration” for the application, which allows it to proceed without further environmental review.

The SEQRA law lays out criteria under which the permitting agency of any development project should demand various levels of environmental review. In making a negative declaration, the DEC is declaring that the project would not be expected to pose an environmental hazard.

The state has long held that the mining of sand and other materials from the ground, and even from below groundwater tables, does not in itself pose an environmental threat.

In letters to the DEC late last month, the town argued that allowing the mining operation to dig directly into the lens of freshwater running through the region, exposing the groundwater table to open air, poses a substantial risk of polluting drinking water supplies for thousands of East Hampton residents because the mine lies within a Suffolk County Water Authority well field area.

They have also argued that the “lake” created would be a safety hazard, with children likely to trespass on the site, and could never be turned into a natural feature when mining was concluded because of its proposed depth.

Southampton Town has already filed a lawsuit against the DEC over its extension of mining permits for the mine in Noyac known as Sand Land, where groundwater tables were found to be contaminated with heavy metals believed to have come from composting being conducted in portions of the mine — a condition that has also spurred state legislation that would specifically prohibit the DEC from allowing commercial operations to continue at sites where groundwater pollution has been detected.

East Hampton had demanded that it be given an additional 30 days to hone its objections to the project based on the documents shared by the state, but the DEC has said it will give the town only until October 15 to submit further comments about the project.

It closed the comment period for all other members of the public on September 27 — about three weeks after the application was found complete and the initial determination on further environmental review was announced in a legal advertisement in The East Hampton Star.

The agency said on Tuesday, October 1, that it is "committed to conducting a thorough environmental review" of the Sand Highway project and ensuring that it meets the existing requirements of its permit.

The town had lodged complaints about the application more than a year ago, when the application was first filed. The town's objections noted that state statutes regarding Special Groundwater Protection Areas specifically highlight that industrial uses should be minimized in such areas and that the Sand Highway mine is in close proximity to Suffolk County Water Authority wells.

In the fight over Sand Land, Southampton Town has pointed to a state statute that demands that the DEC defer to town zoning if a mine is to be expanded. But with both Sand Land, a mine owned by Huntington Ready Mix in Speonk, and now Sand Highway, owned by Patrick Bistrian Jr., the DEC has treated the applications for the extensive new mining as a modification of the mines' existing permits, not new permits, and therefore has maintained that it does not need to consult the towns.

But in its own listing of the Sand Highway application, the DEC's website describes the application type as “Modification Treat as New.”

In his own letter to the DEC, Mr. Van Scoyoc noted that the mine — which had been essentially dormant for decades until 2016 and has nearly doubled in size since then — predates local zoning but is now in a residential district and cannot legally be expanded under town codes.

“The existing mining operation is a pre-existing, nonconforming use and is permitted to continue .… provided the use is not expanded,” Mr. Van Scoyoc's letter reads, while going on to note that the proposed application clearly constitutes an expansion from the current mining operations. “In addition to the numerous environmental concerns raised by such an expansion, the project site is surrounded by small residential lots, including an affordable housing development. The creation of a lake or ‘water hole’ would be an attractive nuisance and raises serious safety concerns for the children who may trespass onto the site.”

The DEC has come under increasing fire from state, county and town elected officials in recent years over its handling of the Sand Land mine, which was found to be causing pollution of groundwater in the region, and its allowance of mines to be “expanded” by digging into groundwater tables. The determination that the Sand Highway application would be considered without any further consideration of environmental impacts has brought new waves of criticism.

In her own letter to the DEC about the Sand Highway application, Councilwoman Kathee Burke-Gonzalez said that the agency has seemingly strayed from its own stated mission of pursuing “environmental quality, public health, economic prosperity and social well-being, including environmental justice and the empowerment of individuals to participate in environmental decisions that affect their lives.”

Ms. Burke-Gonzalez said the agency seems to be abandoning almost that entire mantra in its approach to mining permitting.

"The DEC’s raison d’etre gives great comfort to the residents of New York State," Ms. Burke-Gonzalez wrote in her letter to John A. Wieland, the deputy permit administrator for the DEC. “In no uncertain terms, it says that the DEC has our back. You serve to protect us, our natural resources and our environment.

“With that said,” she continues, “it is extremely baffling that this application — to construct a 6.05-acre lake to a maximum depth of 110 feet below the groundwater table in order to continue sand and gravel excavation in a residential neighborhood over a sole source aquifer that is nearby Suffolk County Water Authority well fields — has gotten as far as it has."

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