DEC Takes Hands Off Approach To Sand Land Enforcement

The Sand Land sand mine in Noyac has been buffeted by two Appellate Division court decisions since May, which declared the New York State Department of Environmental Conservation acted illegally when it issued a new mining permit for the operation in 2019. And last month, New York State Attorney General Letitia James announced that her office would no longer defend the DEC in the matter.

So why then, nearly six months after a judicial panel, by a 4-1 vote, ruled the permit was not valid, has the DEC not enforced the court’s ruling and shut the operation down?

At least part of the reason seems to be that Sand Land itself is now asking the state’s highest court, the Court of Appeals, to hear the case.

In a terse, two-sentence response to a recent inquiry about the matter, the DEC stated that it would not comment until the Court of Appeals rules on Sand Land’s request because “until that court rules on the motion, the matter is subject to potential litigation.”

Still, some onlookers ask why the DEC, which would surely ticket a fisherman who landed a short striped bass or fine a home builder whose deck was too close to a wetland, would be so accommodating to a mine that, for now at least, has no legal right to remain in operation.

“At the moment, they have no permit and they should not be mining,” said State Assemblyman Fred W. Thiele Jr., who has been a leader in an effort to close the mine down. “The fact that the DEC would ignore that is inexplicable, but that’s where we are.”

Although the state, through the DEC, generally has jurisdiction over mining, that is not always the case on Long Island, where the DEC is not allowed to approve a mining permit if the town where it is located has a local law on the books outlawing the practice, which Southampton Town does have.

Sand Land, which is owned by Wainscott Sand and Gravel, was in operation before the town adopted its zoning code, but over the decades, the operation expanded to include the processing of vegetative waste and construction debris. As the area around the mine became developed, the town and neighbors have tried to rein in the operation. A decade ago, the town Zoning Board of Appeals ruled that Sand Land could continue to mine, but had to shut down most of its ancillary operations.

Later, citing concern about groundwater pollution — the mine is in a groundwater protection district — the town began to fight the renewal of the mining permit. That effort took on new urgency in 2018 when water testing conducted by the Suffolk County Department of Health Services showed contamination by heavy metals and other pollutants of test wells at the Sand Land site, although Sand Land has disputed those findings.

Bob DeLuca, the president of the environmental organization The Group for the East End, has his own theory as to why the DEC will not close the mine.

“State mining law is basically schizophrenic,” he said. “The DEC is supposed to both promote and regulate mining. That’s a bad idea.”

Plus, he said, there is a disconnect between Long Island, the only part of the state to obtain its water solely from an aquifer, and the rest of the state, where sand mining is more acceptable.

“The appellate court has said twice the permit is null and void, and the state AG has essentially fired its client,” DeLuca said. “The DEC seems to believe they have permission to keep the mine open and they are going to do whatever is necessary.”

DeLuca said it was unnerving that the DEC would essentially ignore a court ruling. “It’s worrisome when these agencies go rogue,” he said. “Where do we go from here?” He added that it might be necessary for Governor Kathy Hochul to order the DEC to get in line and enforce the court ruling.

DeLuca said he saw reticence on the part of the town to confront the DEC. “There seems to be this kind of hope that the DEC will come to its senses and realize this permit is invalid and continued mining is beyond any limit of approval.”

Southampton Town attorney James Burke said it is frustrating that the DEC has refused to act and said the Town Board is exploring what other options it has. In the meantime, he said the town continues to issue summonses to Sand Land for violations, which are handled in town Justice Court.

“In general, I think they look at these complaints as NIMBYism,” Burke said of the DEC. “They don’t think that mining itself is deleterious. They don’t think the act of mining itself is injurious to the environment.”

David Arnsten, an attorney with the Nesconset law firm Volz & Vigliotta, which has represented the town in the Sand Land case in state court, said the law is “murky” when it comes to whether the state or Long Island towns like Southampton have more authority to regulate mines.

For now, he said, he would continue to discuss options with the Town Board and wait to see whether the Court of Appeals agrees to hear Sand Land’s case. If the court takes the case, the matter could drag on for months or even years. Asked if he thought Sand Land would be forced to close down if the Court of Appeals ruled against it in the coming weeks, he responded “one would think so.”