State Supreme Court Issues Preliminary Injunction Against Sand Land Mining Operations

A State Supreme Court justice issued a preliminary injunction against Sand Land last Thursday, May 30, ordering an expansion of the Noyac sand mine to stop until court proceedings on the matter are complete.

Neighboring homeowners, civic groups and local officials, including State Assemblyman Fred W. Thiele Jr., filed an Article 78 petition in April seeking to reverse a decision made by the State Department of Environmental Conservation that would allow the mine to expand its scope of activity by an additional 3 acres and another 40 feet in depth, and remain operational for an additional eight years.

In the court’s decision to issue a preliminary injunction, Acting Justice James H. Ferreira found the petitioners had presented a probability of success in their efforts and that there is a “danger of irreparable injury” without the injunction.

“This will permit the neighbors, the civics and elected officials to make the case to the court that the expansion of this mine is an illegal threat to the environment, without fear of additional harm to our drinking water,” Mr. Thiele said in a prepared statement on Saturday.

However, the order was granted for only one of the petitioners’ two requests. It halts mining expansions, but it does not stop the DEC from continuing to process Sand Land’s application for a modified permit, which, if granted, would allow an additional 40 feet of underground excavation. A public comment period for the application ended last month.

Regardless, Mr. Thiele called the injunction a “major victory” and said that the limitation is insignificant, because the status quo of the mine is maintained while the issue stands before the court.

“I wasn’t disturbed or disappointed by that at all, because it’s the underlying activity that’s been enjoined, and the judge has basically said, ‘If the DEC does grant them a permit, come back,’” Mr. Thiele said.

He and State Senator Kenneth P. LaValle recently urged the DEC to schedule a local public hearing on the modification application before making a determination, but Mr. Thiele said Monday that he has not received a response on whether the DEC is planning to do so.

During a conference held on May 15, attorneys for the petitioners presented an affidavit from Dr. Stuart Z. Cohen, a certified groundwater professional. In the statement, Dr. Cohen said he reviewed sample data from the mine that was obtained in October 2018.

Dr. Cohen compared the sampling data to the DEC standards for acceptable drinking water, and EPA drinking water standards, according to court documents, and found the water in four out of nine wells had manganese concentrations that were up to 87 times the standard. He also found that there were “highly elevated” levels of radionuclides, that 19 percent of the samples contained the “highly toxic chemicals” thallium, that four of the well samples had nitrate-nitrogen levels that were higher than acceptable, and that four out of six surface water samples exceeded standards for arsenic and lead.

“The State DEC got it right the first time in September 2018, when they issued a determination to close the mine,” Mr. Thiele said in the statement. “Their decision six months later, behind closed doors, to reverse field and permit the expansion of mining was inexplicable.

“Even worse, the State DEC attempted to deceive the public and elected officials by characterizing the settlement as closing the mine. They never mentioned the 3-acre horizontal expansion and attempted to characterize it as a ministerial change,” he added, referring to Sand Land’s 3-acre “Stump Dump,” where vegetative waste was formerly processed and stored at the mine property. Petitioners claimed that the Stump Dump site was added to the total area in which mining operations are allowed to take place without undergoing the appropriate review process.

Prior to the decision, State Supreme Court Justice Kimberly O’Connor issued a temporary restraining order halting further actions related to the settlement agreement and any mining operations from April 18 through 30.

Sand Land’s attorney, Brian Matthews of Matthews, Kirst & Cooley, PLLC in East Hampton did not respond to requests for comment.