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Officials Ask Judge to Renew Legal Challenge to Sand Mine

Thu, 09/16/2021 - 06:35

East Hampton Town has asked a state judge for permission to re-argue its case against digging at a local sand mine, after the State Department of Environmental Conservation allowed the mine to create an artificial lake by digging deeper into groundwater.

John J. Henry, who is representing the town, asserted in court papers that there is now a legal precedent for a preliminary injunction against Sand Highway L.L.C. on Middle Highway. That precedent was set in August, he said, when a state appellate court upheld the annulment of the D.E.C.'s permit for the Sand Land mine in Noyac, ending the possibility that the case could continue on to the Court of Appeals, the highest court in the state.

Sand Highway, which is owned by Patrick Bistrian III, is on an 11.6-acre site. In 2020, the D.E.C. approved its excavation to 110 feet below the water table, which would result in the creation of a 6.05-acre artificial lake. The mine has been in operation since the 1960s under various owners, making it a pre-existing, nonconforming business in East Hampton Town, where the zoning code generally prohibits mining.

At the heart of the issue is the protection of drinking water. Testing in October 2017 at Sand Land, performed by the Suffolk County Department of Health Services, detected manganese, iron, thallium, ammonia, and gross alpha in the water in amounts above what federal regulations deem acceptable. More recent water tests there have come in below those limits, but the mine's opponents have used those data to argue that the mining of sand and gravel has the potential to negatively impact groundwater.

Mr. Henry described Suffolk County's drinking water as "entitled to special legislative protections" because it is the only water supply for more than two million residents here. He also asked State Supreme Court Justice Andrew A. Crecca to allow the town to try again on its challenge to the D.E.C.'s environmental review, which ended in a "negative declaration"; i.e., that vertical deepening would not have a significant adverse impact on the environment.

State records show that the D.E.C. most recently inspected Sand Highway on July 14, at which point two state officials observed that the "water table has yet to be intersected or excavated into." Mr. Bistrian stated to them at the time that the floor of the mine was still 3 to 5 feet above the water table at various places. No permit violations were recorded.

The D.E.C. said yesterday that it does not comment on pending litigation. Bond, Schoeneck, and King, a law firm representing Sand Highway, could not be reached for comment.

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