Riverhead to pursue legal action over sand mining proposal, water contaminants

Riverhead Town is considering legal action to challenge a recent decision by the state Department of Environmental Conservation that determined no additional environmental review will be required for a controversial sand mining proposal in Calverton.

The Town Board is expected to vote Tuesday to hire the legal firm of Thomas M. Volz, PLLC, to sue the DEC after the agency issued a negative declaration for the application by CMA Mine to excavate an 8.5-acre lake to a maximum depth of 89 feet below groundwater at an existing sand mine at the southwest corner of Osborn and Youngs avenues. The property is adjacent to the town’s capped landfill and the applicant is proposing to mine 14.98 acres of the 20-acre parcel.

“We should be able to have a say on our land and our mines,” Supervisor Yvette Aguiar said in an interview last Thursday. “We understand our community at a heightened level, more than any jurisdiction. So we’re hoping to reverse [the DEC decision] and hoping to establish [lead agency] with the court.”

At a work session last Thursday, town attorney Bob Kozakiewicz recommended the board hire the Nesconset-based firm, citing its experience handling similar environmental issues.

“This firm is actually representing Southampton on two particular matters involving two similar challenges to DEC actions involving sand mines,” he said.

Last December, the Town Board voted to hire environmental consultant Jeffrey Seeman to provide a review of the project. His review was sent to the DEC for consideration, as the Town Board and DEC both sought lead agency on the environmental review of the project. “[Our concerns] weren’t addressed, which is why we’re going to litigation,” Councilwoman Jodi Giglio said during last week’s work session.

In July, DEC commissioner Basil Seggos granted lead agency status to the DEC, which in turn issued a negative declaration dated Sept. 29 — one month before an Oct. 21 notice that declared the application complete. 

“Isn’t that interesting?” Ms. Aguiar said last Thursday. “First the application has to be deemed complete, before reviewing all of the [environmental] records,” she said. “That’s an issue.”

Town officials and community members alike have expressed concerns about groundwater contamination that could negatively impact the sole-source aquifer residents rely on for their drinking water.

The issue appeared to have support from the majority of board members, including Ms. Giglio. “If it’s similar in Southampton, which it sounds like it is, to Riverhead, then [the attorney] has already done the brunt of that work,” she said.

A key issue that could be explored in court is whether the mining proposal is a modification or an expansion. The project will ultimately require a special permit from the Town Board in order to expand the pre-existing use, which is not currently allowed under town code.

“We’re going to have a strong approach on this,” Supervisor Aguiar said.

PFOS/PFOA LAWSUIT

The Town Board is also expected to vote Tuesday to retain special counsel to sue the manufacturers of contaminants that have been detected at a well within the Riverhead Water District.

The resolution would approve an agreement with Sher Edling LLP, a California-based firm that specializes in environmental litigation, to sue the manufacturers of products containing perfluorooctane sulfonate (PFOS), perfluorooctanoic acid (PFOA) and related harmful perfluorinated chemicals (PFCs).

Water district superintendent Frank Mancini said in an interview last Thursday that the presence of PFOS/PFOA contaminants has been detected in one of two wells at Plant 5 on Middle Road, just east of Northville Turnpike.

According to a copy of the agreement included in the resolution, the firm will be compensated on a contingency basis, earning a share of the damages only if their lawsuit is successful.

An annual water quality report from 2019 indicates that PFOA was detected at 8.43 parts per trillion in a sample taken Feb. 27, 2019, and PFOS was detected at 15.9 parts per trillion. The report did not specify which location the samples were taken from.

New water quality standards set forth by New York State limit exposure to 10 parts per trillion. 

PFAS and PFOA are artificial compounds that were used in firefighting foams and have been known to have adverse health impacts such as increased cholesterol levels, changes in growth, immune system changes and increased risk for cancer, among other things.

Though Mr. Mancini declined to talk specifically about the scope of the legal proceeding, he said the purpose is to hold the manufacturers accountable rather than individuals.

A vote to hire Sher Edling was tabled at an Oct. 20 meeting after a Melville-based attorney took issue with the hiring process.

Ahead of the vote, Paul Napoli said the town should have used an RFP process to solicit proposals and said his firm specializes in environmental contamination.

“We were not given an opportunity to make a presentation and if fair is fair, we think we would win,” Mr. Napoli said.

Town attorney Bob Kozakiewicz noted during that meeting that there’s no requirement that the town board use an RFP for legal and some other professional services, but said he’d be willing to vet additional legal firms.