SOURCE:
https://nysfocus.com/2023/10/24/sand-land-mining-long-island-dec
By Sam Mellins - October 24, 2023
WHAT DOES IT TAKE to shut down a mine?
Court decisions, a restraining order, legal violation notices, and a stop work order apparently aren’t enough. Sand Land, a sand mine in the Hamptons, has faced each of these this year — and ignored them all.
The latest notice came earlier this month, when the Department of Environmental Conservation (dec) sent Sand Land a letter citing its repeated legal violations and threatening thousands of dollars in fines. Still, the mining has continued.
The mine has operated in defiance for months. In February, the state’s highest court ruled that Sand Land’s operating permit was invalid. The mining continued. In April and July, state regulators informed the mine that it was in violation of state law, and the town of Noyac, where the mine is located, issued a stop work order. The mining continued. In September, a state judge issued a restraining order, ordering the mine to cease operations. The mining continued.
Sand Land’s brazen noncompliance with multiple levels of government has stunned local legislators and environmental activists who have been fighting for years to shut it down, arguing that it threatens safe drinking water in the area. They also worry about the precedent being set for other mines.
“This case is certainly about protecting the groundwater in my district and protecting the environment in my district, but it’s also about the rule of law,” said Assemblymember Fred Thiele, who represents the area. “It’s very hard to explain to the public why the highest court in the state can render a decision and a preliminary injunction gets issued and the state does nothing.”
The mine’s opponents argue that the Department of Environmental Conservation has failed to use the full extent of its powers to force Sand Land to cease operations.
DEC doesn’t appear to have fined the mine’s operator, despite threatening to do so in April. This month, it again threatened to impose fines of up to $2,000 a day. Mine opponents say that wouldn’t be enough to deter further lawbreaking. “But at least it would show good faith,” said Adrienne Esposito, executive director of the Long Island-based Citizens Campaign for the Environment.
Thiele said regulators should take more aggressive action. “The state should be applying for contempt of court,” he said. “That could result in large fines and imprisonment and ultimately the mine being shut down.”
DEC did not answer specific questions for this article, but sent a statement noting that it monitors activities at the mine and has issued “notices of violation to hold Sand Land Corp. accountable.”
The department has also partially defended the mine’s decision to continue operations. On the same day it issued its latest notice alleging ongoing illegal mining in violation of the court decisions, it gave the mine a greenlight to continue removing sand from a specific three-acre segment of the site known as the “stump dump.”
“The department leans toward promoting industry more than anything else.”
—JUDITH ENCK, ENVIRONMENTAL ADVOCATE
Some of the sand in that area was stockpiled there when the mine was operating legally, and removing stockpiled sand doesn’t count as mining, the department said in an October 6 letter.
The argument, which the department made for the first time this month, perplexed one expert.
“It doesn’t make any sense to me,” said Rebecca Bratspies, an environmental law professor at the City University of New York School of Law. New York’s legal definition of mining includes removing minerals from a mine or processing them for commercial purposes, and doesn’t take account of whether the materials have previously been moved. “That is a pretty big point that the department seems to not be paying any attention to,” she said.
Local opponents say dec has a history of siding with the mine. In addition to regulating mines, the department is also charged with promoting the economic interests of the mining industry — a unique mandate that does not apply to any other industry that it regulates, noted Judith Enck, an environmental advocate and former regional administrator at the us Environmental Protection Agency.
“The department leans toward promoting industry more than anything else,” Enck said. “They almost always rubber stamp proposals from mines.”
Under the Obama administration, the federal government took steps to separate regulation and promotion of offshore mining and drilling. After the historic Deepwater Horizon oil spill in the Gulf of Mexico in 2010, the federal agency that had been in charge of both functions was split into three different offices, dividing the responsibilities for regulating the industry, issuing permits, and collecting revenues.
“That certainly has gotten rid of the internal conflicts that led us to the disaster of the massive contamination of the Gulf of Mexico,” said Bratspies, the environmental law professor. But no similar reform has been made in New York.
The state’s mining regulators often spend stints working for the industry they are charged with regulating. The current director of the division that regulates mining, Catherine Dickert, worked at oil and gas development firm sg Interests for over five years immediately before joining the Department of Environmental Conservation, according to her LinkedIn profile. Dickert did not respond to an inquiry.
Some local lawmakers are asking Governor Kathy Hochul to spur regulators to more aggressive action.
Last month, four state legislators representing Long Island sent Hochul a letter requesting that she order the DEC to shut down the mine. Following the letter, representatives of the department and the attorney general’s office, which acts as the DEC’s lawyer, met with opponents of the mine to discuss next steps.
A spokesperson for Hochul told New York Focus said the governor “is confident that DEC in collaboration with the Attorney General will hold Sand Land responsible for any violations of state law.” A spokesperson for the attorney general said that her office, together with the DEC, is monitoring the mine, “and if necessary, will take the appropriate steps to ensure Sand Land is held accountable.”
No concrete plans have yet been announced. “We have not heard directly from the governor, nor has the DEC or the attorney general’s office taken any of the actions that we requested in our letter,” Thiele said.
“We need her to step in. We need her to show the leadership that we need right now,” said Senator Monica Martinez, who represents part of Suffolk County. “What bothers us is that they’re constantly being told, ‘You will be fined,’ and nothing is happening.”