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Federal judge wants DEC to play role in Brookhaven Rail Terminal debris flap

This aerial image, provided by the Town of

This aerial image, provided by the Town of Brookhaven, shows the Brookhaven Rail Terminal site, left, in Yaphank on May 2014. Credit: Town of Brookhaven

A federal judge said Friday he will get the state involved in a dispute over dumped debris at the Brookhaven Rail Terminal that the Town of Brookhaven says is tainted and threatens the underground drinking water supply.

Magistrate Judge Gary R. Brown of U.S. District Court in Central Islip, however, denied a request by the town that he order the terminal to remove 15,000 to 20,000 cubic yards of debris.

"I don't see how that outcome helps you," Brown told Robert Calica, an attorney retained by the town.

Brown said the state Department of Environmental Conservation or another agency must still determine whether the dumped material is contaminated and how to dispose of it.

The judge said he will issue an "opinion/direction instruction" asking the DEC to investigate "within 60 days -- 90 days at the latest."

Three attorneys -- Yonaton Aronoff, Kevin Mulry and Michael White -- representing the terminal and its corporate partners consented to the DEC involvement.

Calica said he didn't think the DEC's involvement would be helpful. "The DEC hasn't moved," he told the judge.

Brown replied: "I'll make the DEC move. Watch."

Long Island Business News reported on May 11, 2012, that the DEC had visited the site in Yaphank, found landfill-type debris in areas mined for sand and was planning to issue citations.

The DEC said Friday that it "received information regarding alleged dumping of historic fill" at the site in 2014, and referred that information to the Suffolk district attorney's office. The judge also directed both sides to exchange a list of demands within the next week in an effort to resolve their dispute.

The town and the terminal are also battling in court and with regulatory agencies over whether the terminal's railroad status exempts it from certain town regulations, such as environmental rules.

Brown barred the terminal last June from further sand mining on the site because of the risk to the aquifer, and rejected its claim that it was only expanding its rail system.

"The evidence presented indisputably demonstrates that defendants have engaged in wholesale mining of the parcels entirely independent of any rail construction development," the judge ruled.

The Suffolk County district attorney's office has confirmed it is investigating a complaint received about the site from the DEC, but has refused to say what the referral was about.

Brookhaven Rail Terminal has said it conducted its own testing on the materials but has not released the results.

CORRECTION: An earlier version of this story inaccurately described Calica's comment about the DEC.

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