Outrage In East Hampton After State Says Allowing Mine To Dig Into Groundwater Poses No Environmental Threat

The New York State Department of Environmental Conservation has ruled that a proposal by one of the Bistrian family’s mining companies to create a 6-acre, 110-foot-deep “lake” in the woods near East Hampton Village by excavating sand and gravel from beneath the natural groundwater table would pose no substantial environmental hazard.

The proposal by Patrick Bistrian Jr. has outraged environmentalists, neighbors of the Middle Highway property and local officials who say it would expose drinking water supplies to direct unfiltered contamination by pollutants and that the DEC should be trying to bring an end to the use of the mine, which is now surrounded by residential neighborhoods, not to expand it.

In the wake of the decision, and others by the DEC’s Division of Corporations in recent years, the East End’s representatives in the New York State Legislature have vowed to place new checks on the authority of the DEC as the sole regulator of mining operations.

The application for the sand pit at 15 Middle Highway was filed with the state a year ago. It asks the DEC to allow the mining of sand from up to 110 feet below the groundwater table in a 6-acre portion of the 14.5-acre property. As the sand and gravel are excavated, a new lake would be created in the growing hole as groundwater continued to flow through the soil.

The application comes as the renewed activity at the long-dormant mine is approaching the permitted limits of its current excavations on 11 acres to a depth of 40 feet.

The property was long owned by David L. Talmage and had been essentially dormant for years until 2016, when new operators were brought in — first Steven Mesznieski Inc. and then Sand Highway LLC, which is registered as being headquartered at Bistrian Materials’ Springs-Fireplace Road offices.

But since 2016, aerial photos of the site show that the amount of cleared area appears to have nearly doubled.

“It’s gotten so close to our houses now, I can hear it all day,” said Nanci LaGarenne, who lives nearby and has lobbied the town for years to do something to halt use of the mine. “We kind of thought he must be getting close to being done, because how much more could he dig? Then we found out about the new application.”

The town had made overtures in the past to the Talmage family to purchase the property but was rebuffed.

The application has been opposed by East Hampton Town officials and by the Suffolk County Water Authority, which has water supply wells near the mine. The property lies within a state-designated groundwater protection area.

“This sand mining facility is located up-gradient of two existing SCWA public supply well pump stations, one on Spring Close Highway and the other on Oakview Highway,” water authority CEO Jeffrey Szabo wrote to the DEC last October in opposition to the application by Mr. Bistrian. “The existing sand, gravel and clay act as a natural barrier to prevent contamination from going deeper into the aquifer. When materials that make up this barrier are removed, the protection of the aquifer is reduced or lost altogether.”

Mr. Szabo pointed in his letter to the contamination of groundwater by the “Sand Land” mining pit in Noyac, which was only discovered after the Suffolk County Department of Health sued to be allowed to conduct water testing that the DEC’s Division of Corporations said was unnecessary. Levels of manganese and iron detected in the water at the Noyac site were more than 100 times safety thresholds. Mr. Szabo said that exposing groundwater to the open air only serves to exaggerate the threat of potential pollution that would be immediately mobilized in the groundwater leading away from the site.

Mr. Szabo also said that elevated levels of manganese have recently been detected in one of the water authority’s drinking water wells on Spring Close Highway, which lies down-gradient of another, much larger, Bistrian mining operation on Springs-Fireplace Road. He said the levels detected are still well below health safety thresholds but are high enough to cause concern at the water authority.

Town officials have also pleaded with the DEC to dismiss Mr. Bistrian’s request on the grounds that the mine only exists by virtue of its grandfathered allowances from before the town designated the region for residential development. Under town law, such “pre-existing, nonconforming” uses may continue to operate but may not be expanded.

In a letter to the DEC last fall, East Hampton Town Supervisor Peter Van Scoyoc reminded the DEC that the Sand Highway mine sits within a Special Groundwater Protection Area, a special overlay that indicates it is an area that hosts a critical source of drinking water and that extra precautions should be taken to guard against contamination.

“This site is located within the South Fork SGPA and [a state report] recommends in this reach ‘limiting commercial and industrial uses,’ and further states that the NYSDEC should ‘require the filling and regrading of mined sites’ in this groundwater protection area,” the letter says. “The proposed expansion of this commercial pre-existing, nonconforming use in a residential district and groundwater protection area should be denied.”

While the DEC has not yet approved the proposal, it has issued a “negative declaration” saying that the application does not warrant an exhaustive examination of the potential impacts of allowing the project to go forward.

The agency also recently approved a similar proposal to allow mining of sand and gravel from up to 40 feet below the water table at the Huntington Ready Mixed Concrete Inc. sand mine in Speonk.

The state posted legal notices this week that the application has been deemed “complete” and gave the public until September 27 to submit input on the proposal.

Environmental advocates say that allowing a mine to dig through the water table is like opening a drain for pollutants directly into the region’s groundwater supply.

“The state continues to take the position that there’s no risk of digging directly into the aquifer but it doesn’t take a scientist to understand that if you scratch open the last layer above the aquifer you are making it easier for contamination to get into the water,” said Bob DeLuca, president of the Group for the East End, which filed a lawsuit challenging the DEC’s approval of an expansion of the Sand Land mining operation despite the discovery of the groundwater contamination. “The whole posture they have taken on sand mining in the last few years is completely at odds with the mission of environmental conservation. They have lost their way.”

State Assemblyman Fred W. Thiele Jr. said that part of the problem is that legal cases in the 1990s stripped local municipalities of the right to jointly regulate sand mine operations with the DEC.

Because the DEC is the sole regulator of sand mine operations, its willingness to allow mines keep operating even when contamination is found and to expand when closures seem to be the obvious choice has become a serious concern for him and Senator Kenneth P. LaValle, he said.

“The DEC has become nothing but a rubber stamp for the mining industry,” Mr. Thiele said this week. “It’s like they have tunnel vision. It boggles the mind that with a major industrial activity they would say they don’t need to test the water.”

Mr. Thiele and Mr. LaValle shepherded through a law last year that will allow local municipalities to insist on conducting groundwater monitoring at mining sites, and they have another bill pending that would bar the DEC from allowing mining to continue on sites that have been found to be polluted.

Southampton Town has proposed legislation that would institute monitoring protocols, and East Hampton Town has hired a consulting company to help it craft its own legislative approach.

But Mr. Thiele said it has become clear that more than just monitoring will be needed for there to be any teeth in the regulation of sand mines like Sand Land and Sand Highway. He said he and Mr. LaValle plan to introduce additional legislation in the coming year that would legislatively restore the joint jurisdiction over sand mines by state and local agencies.

“We’ve seen that the current regulatory framework clearly isn’t protecting groundwater,” he added. “We’ve seen it with Sand Land and now the [declaration] with regard to the Bistrian application is more of the same. It’s hard to think they’ve taken a hard look at any environmental issues. The DEC is completely failing at its mission to protect the environment.”