The Unstoppable Sand Land

“I have been doing this work over 30 years,” said Adrienne Esposito, executive director of the Long Island-based Citizens Campaign for the Environment. “I have never seen such an example of government turning its back on illegal activity.”

Some might be inclined to dismiss the fight as a not-in-my-backyard battle in one of the ritziest parts of New York. But environmentalists say the case has broader implications, calling into question the state’s ability to crack down on polluters. As the mine gets deeper, it gets closer to the aquifer that supplies Long Island’s drinking water — and increases the risk that contaminants, including the leftover contents of an organic waste dump, could seep in.

“If people who have resources to challenge these outcomes of this permitting practice can’t get anywhere, imagine what other communities are facing,” said Bob DeLuca, president of Group for the East End, a local environmental organization. “The average person can’t just reach into their pocket and chase DEC for 10 years.”

Sand Land maintains that its activities have been above board. In May, it filed a new lawsuit against the DEC over the violation notices, arguing that it had another permit — untouched by the Court of Appeals ruling — that allowed it to continue operating. The case is pending, and Sand Land’s lawyer, Gregory Brown, said he would not comment on ongoing litigation.

The DEC, for its part, has rejected Sand Land’s latest legal counteroffensive as baseless. The agency “is committed to protecting the environment and continues to rigorously monitor activities” at the mine, a spokesperson told New York Focus. “DEC is continually coordinating with the Office of the Attorney General to hold Sand Land responsible for any violations of State law, regulation, and permit conditions.”

The reported water contamination particularly alarmed locals and environmentalists because the mine sits over an important aquifer, in an area designated for special groundwater protection. Unlike other parts of New York, Long Island gets its drinking water entirely from the aquifer running underneath it, one that is increasingly threatened by overuse, rising seas, and chemical contamination.

The aquifer is recharged by rain that filters through the ground; the deeper the ground, the better the filter, and Sand Land sits on one of the highest points on the east end. That should give the mine a lot of buffer — but the more sand it removes, the less protection there is from potential contaminants.

So when, in 2014, the mine applied for a permit to mine 40 feet deeper and across a few more acres, locals were not having it. Neighbors and environmental groups opposed the expansion, and the DEC rejected Sand Land’s permit. The company appealed, but lost again in 2018. The DEC said there was no sand left to legally mine and started the process to reclaim the site for future use.

They never finished. Instead, the DEC reversed course and worked out a secret deal that would give the company most of what it wanted: Sand Land could mine 40 feet deeper, and on three more acres, as long as it agreed to stop processing waste at the site. The parties announced the deal’s existence but did not release the text; when Sand Land’s opponents obtained the agreement through a public records request, it was entirely redacted.

Normally, expanding the mine would have required approval from the town — which banned new mines in the 1970s — but the DEC claimed it wasn’t approving an expansion at all, just a renewal of the existing permit.

The mine’s opponents did not take this well. They sued, kicking off a years-long court fight that wound its way all the way to the Court of Appeals, the state’s highest.

“The DEC simply has not been the protector of water quality, has not been the protector of the environment, but has literally broken the law to assist the industry here,” said Assemblymember Fred Thiele, who represents the area.

This February, the court ruled unanimously: The permits DEC had issued were invalid, and Sand Land would have to go back to the drawing board — and get the town’s approval — if it wanted to continue mining.

The town declined. In April, it sent a letter to the DEC reiterating that the mine had never gotten its approval to expand and posted a stop work order at Sand Land’s entrance. DEC inspectors showed up at the site three times that month, and ordered the mine to shut down or face steep fines.

But after a brief pause, Sand Land went back to work — and sued the state for trying to stop it. The mine claims that a 2020 modification, made to the permits the Court Appeals annulled, allows it to keep mining. The case is now stalled in an Albany court, awaiting action from a judge who sided with Sand Land in the case that ultimately went to the higher court.

Opponents say the suit is just the latest delay tactic in a legal saga that has already bought Sand Land years of lucrative mining. Based on aerial imaging of the site, the mine’s neighbors estimate the company has over those years mined more than 400,000 cubic yards of sand beyond the boundaries of its permits, including about 21,000 cubic yards between April — when the town posted its stop work order — and the end of July. That amounts to millions of dollars’ worth of sand.

Sand Land’s lawyer did not answer a question about the accuracy of the figures. In legal filings, the company maintains that it has always respected its permits and relevant court orders. It has denied excavating material from inside the mine since the Court of Appeals decision, though video evidence suggests otherwise.

A few years earlier, emails show a DEC attorney appearing to press her supervisors for a reduced fine as the agency negotiated a consent order with Sand Land.

“I was not able to get approval for 50 payable and 50 suspended,” wrote the DEC’s Jennifer Maglienti to Sand Land’s lawyer. “The attached is settlement for 65k payable, with 35 suspended.”

The DEC spokesperson characterized the negotiations as a consent order, which the agency commonly uses to save time and money compared to other enforcement methods.

On paper, the department has two roles that are often at odds: promoting an “economically sound and stable mining industry,” and protecting the environment. Some say it has failed to strike the right balance.

“The last time I checked, the ‘E’ in DEC stands for environment and not for economics,” said Thiele. “The law that was written by the legislature attempts to balance these competing interests, and they put their finger on the scale in favor of industry.”

Thiele said the Sand Land case is not isolated. In nearby Riverhead, local officials are also fighting the DEC over its approval of a plan that would allow a mine to expand nearly 100 feet below groundwater level.

“In other areas, they do enforce and they are aggressive. With sand mining, they look the other way,” Esposito said of the DEC. “It’s as if there are two different agencies — one that’s protecting our environment, and one that’s allowing sand mining to destroy parts of the island.”

While Sand Land’s opponents like to single it out, the mining industry stood by it in front of New York’s high court. The New York Construction Materials Association, a trade group, filed a lengthy amicus brief on Sand Land’s behalf in the Court of Appeals case, arguing that a ruling against the mine would threaten “the building blocks of the state’s infrastructure.”

Ronald Epstein, the association’s president, told New York Focus the group got involved in the case “to preserve the established constitutionally protected property rights that apply to the industry statewide,” but declined to comment on Sand Land’s activities since then, saying he was not familiar with the specifics. He said the group “does not support or defend any of the alleged compliance issues.”

Even some of the mine’s opponents have echoed concerns that closing the mine could mean losing a valuable resource.

“We’re going to have to get sand somewhere,” said Southampton town supervisor Jay Schneiderman. “If we’re not getting it locally sourced, then [that means] more trucking from distant locations, and that’s going to drive up the costs of construction. There’ll be other environmental impacts from the trucking and the diesel fumes and the traffic. So it’s not such a simple issue.”

Schneiderman maintains that Sand Land had mined beyond the limits of their prior permit, and would need a new permit to mine further, but declined to comment on whether the company was acting illegally in continuing to mine.