New York State’s highest court, the Court of Appeals, last Thursday struck down a permit that the State Department of Environmental Conservation had awarded in March 2019 to the Sand Land mine, a business in Noyac that predates the Southampton Town law prohibiting mining.
In a 15-page decision, Acting Chief Judge Anthony Cannataro upheld the permit annulment previously issued by the state Appellate Court, “albeit for different reasons.” The decisions were based on different interpretations of a Southampton Town law that prohibits mines beyond those that are pre-existing and nonconforming, as is the case for Sand Land.
The Appellate Court ruled in May 2021 that the D.E.C. overstepped its authority in awarding a new permit in a municipality where mining is prohibited. However, the Court of Appeals stated last week that the question at hand is not whether mining is illegal in Southampton Town, but rather whether the permit application should have been processed as a renewal or modification of mining operations.
The Court of Appeals has sent the case back to the State Supreme Court, where the D.E.C. will have to determine whether Sand Land’s bid for a new permit “is within the scope of any prior nonconforming use. . . . Ultimately [Southampton Town code] will bar D.E.C. from processing any application that seeks to mine beyond the scope of prior nonconforming use.”
The permit in question allowed Sand Land to operate for eight more years and to dig 40 feet deeper in the 31 acres that it was previously allowed to mine. It also gave the mine permission to process crushed concrete aggregate, crushed stone, and finished compost, which was not covered by a previous permit. Questions have been raised over the impact of mining on groundwater in Noyac; at Sand Land in 2017, Suffolk County found contaminants including manganese, iron, thallium, ammonia, and gross alpha (radiation) in excess of federal Environmental Protection Agency standards. Since then, Sand Land’s attorneys have asserted that water testing results were within normal parameters.
That the Court of Appeals decided to hear Sand Land’s case was a fairly rare occurrence; Gregory Brown, an attorney representing Wainscott Sand and Gravel, which owns Sand Land, previously told The Star that the court receives about 900 requests per year and agrees to hear only about 5 percent of them.
In announcing the Feb. 9 decision, Assemblyman Fred W. Thiele Jr. called for the D.E.C. to “immediately close this illegal mine. No further delays can be tolerated.” He said the D.E.C. had “sided with industry at the expense of the environment and the public.”
“Today’s state court of appeals decision upholds the intent of the state legislature to protect our drinking water by striking down the illegal expansion of industrial uses which threaten our environment,” Mr. Thiele said in a statement. “This is a victory for the public and for clean water.”
The D.E.C. said in a statement Friday that it is reviewing the court’s decision.
Mr. Brown said in an email Friday that “the Court of Appeals modified the Appellate Division decision to recognize that Sand Land’s property rights are constitutionally protected and cannot be eliminated by application of the statute.”
The Court of Appeals decision may not mean the end of Sand Land’s operations. The mine will now go through the D.E.C. to process an application with the correct determination — renewal or modified — in hand. “We expect to have those permits once the process is completed,” Mr. Brown said.
According to New York State’s database of mining operations, Sand Land was inspected on Dec. 21, 2022. Three permit violations were recorded stemming from the inspectors’ observation of the processing of soil imported to the site from elsewhere; Sand Land’s most recent permit allows it to accept finished products only. The report indicates that other aspects of operations, including dust and noise control and proper drainage, were met to the inspectors’ satisfaction.
