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Court bars Brookhaven Rail Terminal sand mining

This is the area of the 93-acre expansion

This is the area of the 93-acre expansion of the privately-owned Brookhaven Rail Terminal site in Yaphank in May 2014. The initial 28-acre triangle of land runs parallel to Sills Road directly below Exit 66 of the Long Island Expressway. Credit: Town of Brookhaven

A federal court has barred the Brookhaven Rail Terminal from further sand mining at its planned expansion site and authorized testing for contaminants of material, some of which the owners say was at the property when they bought it.

Magistrate Judge Gary Brown granted a preliminary injunction Monday to the Town of Brookhaven, citing the threat of "environmental destruction" as a result of sand mining the rail depot is alleged to have conducted illegally on its Yaphank site.

The ruling bars the owners from "further mining, removal or sale of sand and other material from the site" after the town sued BRT in March. It also authorizes the town to "enter the premises to inspect to ensure compliance . . . photograph the site for purposes of documentation and evidentiary submission and collection of samples of debris for the purposes of testing the contaminants."

Brookhaven Supervisor Edward P. Romaine said the ruling represented a key step toward "environmental justice."

In a statement, Brookhaven Rail president Jim Newell said the decision was one "in a lengthy process that we believe will reveal the town has profoundly overstepped its municipal jurisdiction, while refusing to acknowledge that the BRT is a strategic transportation asset for all of Long Island."

In the short term, Newell said, the ruling would divert resources from expanding the region's freight rail facility, which had already demonstrated the means to take thousands of trucks off the Long Island Expressway, improve Long Island's air quality and strengthen the local economy.

The dispute is the latest step in a wrestle over which arm or arms of government -- federal state or local -- have jurisdiction to regulate the terminal, which began operations on an initial 28-acre parcel at Sills Road, south of the Long Island Expressway's exit 66, in September 2011.

The federal Surface Transportation Board approved in 2010 the terminal's site as a short line railroad. The railroad authority required grading of that parcel for safety reasons to ensure tracks at the facility would be at lower elevation than the Long Island Rail Road mainline, off which the terminal's spur runs.

That raised suspicions among some town officials, residents and officials at the state Department of Environmental Conservation that illegal sand mining might be occurring. Without federal approval, DEC officials noted, the owners would have been required under state law to seek a permit for mining and because that property is not zoned by the town for mining, would have been denied.

The terminal owners say the 2010 federal approval trumps state environmental regulations and local town zoning and that it extends to the subsequent land purchases for which they have expansion plans. The owners say what the town describes as sand mining is grading in preparation for a rail expansion on an adjoining 93 acres.

Brown's ruling focused on the lucrative sand mining, noting the operators testified they expected to generate revenue of $10 million or more and that the town anticipated removal of more than 2 million tons of sand from the site.

The owners "are conducting a sand-mining business completely separate and apart from any railroad construction," he ruled.

As part of preparations for the lawsuit, the town provided a file, including more than 200 photographs -- aerials of the site and ground shots depicting some of the materials it contends has been trucked to the site -- to both the DEC and the Suffolk County district attorney's office.

"We are working with them cooperatively going forward," said Romaine, who in January touted BRT at a presentation to ratings agency Moody's as a key to economic growth.

The town plans to start testing for contaminants as soon as arrangements can be made with the property owners.

Peter Constantakes, spokesman for the DEC, said Tuesday its law enforcement division is "actively investigating complaints of illegal dumping of solid waste at the Brookhaven rail terminal site, and is coordinating its investigation with other enforcement agencies."

Robert Clifford, spokesman for District Attorney Thomas Spota, declined to comment.

During a two-day hearing before Brown in Central Islip last month, the town called Stephanie Davis, a hydrogeologist with FPM Group based in Ronkonkoma, as an expert witness. Davis testified that among debris materials photographed on the 93-acre tract were some piles that had the general appearance and characteristics of "historic fill" from New York City.

The term is used by the environmental industry and regulators to describe material historically used to raise grade along shorelines in and around the five boroughs in days before modern environmental regulations. The fill can contain ash, slag, landfill material, pesticides and other toxins which often contain contaminants.

BRT has said what Davis described in court were piles of material that pre-existed their land purchase. As news of the dumping scandal in Islip swirled last month, they moved to conduct testing themselves and the results, shown to Newsday, show no presence of contaminants at any concentration that would violate NYSDEC regulations.

The town levies a fee for sand mining on three DEC-licensed mining companies.

The BRT owners agreed as part of a settlement with the town in 2011, following federal approval, to a $1 million payment over 10 years as a gesture toward the mining fee the town exacts on DEC-licensed mining operations within its borders.

"The town did not bring this action merely to raise revenue -- that's not what this is about," Romaine said, adding that the town, which has spent about $100,000 on legal fees mounting the case so far, had no intention of settling out of court.

The town hopes its costs will be recouped from the terminal owners if it prevails, but Romaine said either way, "the risk is worth taking -- the environment is too important."

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