Supervisor: Riverhead ‘cooperating fully’ with DA in sand-mining probe

Riverhead Town is cooperating fully with the Suffolk County district attorney’s office in its investigation into sand mining activities, according to Riverhead Supervisor Sean Walter.

The Suffolk DA served Riverhead with a subpoena in March, he said. Town attorney Robert Kozakiewicz responded to the subpoena, Walter said yesterday.

Riverhead was one of five Suffolk towns served with subpoenas in an investigation into sand-mining activities, according to a report in Newsday published Monday.  The Department of Environmental Conservation, which regulates mining statewide, also received a subpoena, Newsday reported.

The subpoena requested sand-mining documents and information on fees towns have collected from sand-mining operations, some going back more than 10 years, according to Newsday.

Walter said he learned of the subpoena Monday when he read the Newsday story. Councilman John Dunleavy said he was unaware until asked about it by a reporter Wednesday.

“Bob didn’t tell us about it,” Dunleavy said.

The supervisor said he has personally spoken with the assistant district attorney in charge of the case, whom he called to offer up additional records.

“We complied with it and gave them information, but what we have is so voluminous. We have much more to give them and I wanted to make sure they knew, so I called the attorney in charge,” Walter said. “They may send investigators out to review some files. We will give them everything they need.”

Kozakiewicz could not be reached for comment.

There are two controversial large sand mines in the Town of Riverhead, both located in Calverton off Route 25. The town, dating back to the 1990s, fought long and expensive court battles with both mine operators as well as the state DEC over mining activities and mining permits issued by the state.

Brookhaven, Islip, Riverhead, Huntington and Babylon also received subpoenas, according to the Newsday article, which says the DA’s probe, which follows its investigation into illegal dumping in and around Islip Town, is focused on the materials that are deposited to fill up the holes created by mining. Contaminated fill poses a threat to groundwater. The mine “reclamation” process — filling the hole — is regulated and overseen by the DEC.

The town’s inability to monitor the fill used to reclaim mined land is something that has long troubled some Riverhead officials with respect to the large sand mines in Calverton, which were issued mining permits by the state despite a 1998 town code change that banned sand mining in Riverhead.

The Calverton sites — a 46-acre mine operated by T.S. Haulers on the north side of Route 25 and a 41-acre mine operated by Calverton Industries — are located in a county-designated special groundwater protection area and a state-designated critical environmental area. The Calverton Industries site borders the Central Pine Barrens.

“We were extremely concerned about the materials being used as fill,” former councilwoman Barbara Blass said yesterday. When she was in office, she sought to have a town monitor inspect the fill and sought to have groundwater tests done to make sure the fill was not contaminated and polluting the aquifer. Those efforts were rebuffed by state regulators and eventually abandoned by town officials.

“We didn’t have jurisdiction. We tried but did not have the jurisdiction,” said Walter, a lawyer who served as deputy town attorney during Blass’ tenure as a councilwoman.

Both Calverton sand mines were the subject of bitter debate among board members in addition to complex legal wrangling in the late 1990s and 2000s. Both commercial mining operations were established without town permits and Riverhead went to court to try to shut them down, taking on the mine operators and the state DEC, which had issued mining permits to both companies over the town’s objections.

The DEC issued the mining permits without extensive environmental review, which the town fought in court, arguing the DEC violated the State Environmental Quality Review Act, known as SEQRA.

The town had attempted to gain control of the environmental review process for the Calverton Industries site by seeking “lead agency” status for the purposes of SEQRA review. But the state DEC commissioner ruled against the town in 1998. Citing the the potential for regional impacts to the drinking water supply from mining operations in a special groundwater protection area, the DEC commissioner ruled that environmental review belonged with the state environmental protection agency. But the DEC then declined to require an environmental impact statement as part of its permit application review, and the town went to court.

A State Supreme Court judge ruled in favor of the town. In a separate lawsuit, the town’s zoning change that banned mining was also upheld and an appeal of that court decision was denied.

Subsequent to those court decisions, then-supervisor Kozakiewicz announced in March 2002 that the town would had entered a settlement stipulation with Calverton Industries, under which the company would pay the town $1.25 million dollars and would continue to operate the 41-acre mine for five more years — instead of the 15 years allowed by its DEC permit.

In a press release, the town announced that a court judgment compelled the town to settle with Calverton Industries. Kozakiewicz insisted the town had no choice but to settle, because it was ordered to do so by the judge, according to a March 2002 article published by the News-Review. It was “imposed by the judge,” Kozakiewicz told the paper. But a spokesman for the court said the nine-page settlement was agreed upon by both parties and simply signed by the judge, according to the article.

Blass said yesterday she was outraged by the town’s agreement to settle a case the town had won. She attempted to amend the settlement with a resolution on April 16, 2002 that would reserve to the town the right to enter the site, sample materials being brought in as fill and test them for contaminants.

The mine’s DEC permit conditions called only for groundwater testing twice a year, which Blass called “woefully inadequate” for a mining operation in an environmentally sensitive, special groundwater protection area.

Blass’ resolution failed 3-2, with Councilman Ed Densieski lashing out at the councilwoman for “political grandstanding.” The town should settle the case to avoid additional legal expenses and posible exposure to liability he said could reach into the millions of dollars if the town continued in court and lost.

Kozakiewicz said the settlement was hashed out over a number of months and agreed to by the entire town board, though “granted … it didn’t contain the one condition Councilwoman Blass feels so strongly about,” according to the town clerk’s minutes of that meeting. The settlement ended all litigation with the mine operator, he said, including a federal civil rights action, and it allowed the town to recoup some $500,000 in legal fees spent to battle the mine over the four years prior. Taking into account the totality of the circumstances, Kozakiewicz said, the settlement was the right thing to do.

The town was in court with T.S. Haulers — which began operating its Calverton mine in 1998 — from 2001 until 2011. The town eventually prevailed in all three lawsuits, including one brought in 2009 in federal court alleging violation of its civil rights and denial of equal protection under the U.S. Constitution, because the town had denied its mining permit but had issued mining permits to other entities, including a golf course and water-ski park. That action was dismissed and a subsequent appeal was withdrawn.

Walter said yesterday the DA’s subpoena did not seek records specifically pertaining to either Calverton Industries or T.S. Haulers.

“They were looking for stuff from ‘05 forward,” he said.

Dunleavy said yesterday both sites are being used today as materials processing and recycling facilities. Mining and reclamation has ceased in both locations, he said.

Calverton Industries filed an industrial subdivision sketch plan map with the planning board, according to the supervisor. “I think they want to subdivide and sell industrial lots,” Walter said.