In what attorneys and lawmakers have described as a rare occurrence, New York State’s highest court has decided it will hear an appeal from the Noyac mine known as Sand Land, which is trying to hold onto its operating permit.
On Feb. 15, the Court of Appeals granted Sand Land’s motion for leave to appeal a lower appellate court’s May 2021 decision that annulled its permit, which was awarded in 2019 by the New York State Department of Environmental Conservation. The outcome of the appeal is expected to have implications not just for Sand Land, but also for mines in East Hampton, Riverhead, and Brookhaven towns.
State Assemblyman Fred W. Thiele Jr., who has said for many years that sand mining has a negative impact on Long Island’s underground drinking water, said last week that the decision to hear the case means that the state’s highest court has “something they want to say” about sand mining.
“They don’t hear a lot of these motions for leave to appeal,” Mr. Thiele explained.
Gregory Brown, a partner at Brown, Duke, and Fogel, the law firm representing Sand Land, said the Court of Appeals gets around 900 requests per year, and agrees to hear only about 5 percent of them.
“They’re grateful for the opportunity to have the case heard,” Mr. Brown said on behalf of his client, Wainscott Sand and Gravel, which owns Sand Land.
The Court of Appeals also granted a stay of the lower court’s decision that Sand Land must hold off on mining for the time being, which “would have been important if the D.E.C. actually enforced the appellate decision, but they never did,” Mr. Thiele said.
Through a spokesperson, the D.E.C. asserted on Feb. 16 that it “continues to provide rigorous oversight of Sand Land, including conducting repeated inspections of facility operations, to ensure compliance with D.E.C. requirements throughout the ongoing litigation.”
The Sand Land case dates back to October 2017, when tests performed on water samples taken at Sand Land turned up pollutants and heavy metals — including manganese, iron, thallium, ammonia, and gross alpha (radiation) — in excess of federal Environmental Protection Agency standards. It even led to the E.P.A. looking into Sand Land as a possible Superfund site in early 2020. However, the water testing results have been questioned because samples taken since then from monitoring wells have produced readings within normal parameters.
In March 2019, the D.E.C. granted a new permit, for eight more years, allowing Sand Land to dig 40 feet farther down in the 31 acres previously permitted, after which it would be required to take on a large land-reclamation process. That permit reversed a September 2018 settlement with the D.E.C. that would have ended Sand Land’s mining operation that November, with land reclamation to commence immediately afterward.
Southampton Town and several environmental and citizens groups, including the Noyac Civic Council and Citizens Campaign for the Environment, responded almost immediately by commencing legal action.
The D.E.C., represented by the New York State Attorney General, was one of the defendants in the case as it stood by the March 2019 permit. It has since dropped its appeal.
Southampton Town argues that the D.E.C. violated the rights of local municipalities to regulate mining themselves; rights established in legislation at both the town and state levels.
James Burke, Southampton Town’s chief attorney, said he was “a bit surprised by the Court of Appeals granting leave” because the D.E.C. is no longer appealing the lower appellate court’s decision. However, he said, there may yet be a positive outcome for groundwater protection.
“It will hopefully clarify and solidify the important role that the towns on Long Island play in the regulation of sand mining, particularly those mines that are in special groundwater protection areas and do not comply with current zoning,” Mr. Burke said in an email to The Star.
Mr. Brown maintained that Sand Land, “which has been there for over half a century or so,” provides an essential function. “It’s not just the jobs it creates, but having a supply of sand in that location means you’re not taking it from further away or barging it in, which is pretty difficult,” he said.
Bringing in sand from elsewhere raises concerns over greenhouse-gas emissions and other environmental issues. “If you don’t have a local sand mine, that negatively impacts all of those things,” Mr. Brown said.
The Court of Appeals has not yet named a date to hear the case.
