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State DEC refers possible illegal dumping and sand mining case to Suffolk DA

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 in May 2014. Credit: Town of Brookhaven

The state Department of Environmental Conservation has referred a possible illegal dumping and sand mining case involving the Brookhaven Rail Terminal to the Suffolk County district attorney, officials say.

The move comes after a U.S. District Court magistrate slapped a stop work order on a 93-acre expansion of the privately-owned Yaphank facility as part of a lawsuit filed in March by the Town of Brookhaven.

Concerned that sand mining and dumping might be occurring, the town referred photographs it took during the court case to the DEC, which passed the matter to the district attorney's office. The referral last week follows news of tainted fill at sites in Islip also under investigation by the district attorney's office.

Robert Clifford, a spokesman for District Attorney Thomas Spota, declined to comment, as did the DEC.

Magistrate Judge Gary Brown in Central Islip is expected to rule any day on a preliminary injunction against the rail depot, touted by public officials and environmentalists alike for its potential to reduce truck traffic on Long Island.

The court action is the latest step in a series of struggles over which arm of government -- federal, state or local -- has jurisdiction to regulate the terminal that began operations in September 2011.

In January, Brookhaven Supervisor Edward P. Romaine used the rail terminal as a key lobbying point in a presentation to Moody's ratings agency, touting Brookhaven's economic development prowess. But within weeks, the town had moved to file suit against the hub.

The lawsuit alleges the rail terminal has proceeded in a planned expansion from its 28-acre initial site off Sills Road without any of the necessary environmental, federal or local approvals and that grading going on at the 93-acre parcel in preparation for laying more rail track amounts to sand mining. It also alleges the dumping of inappropriate material at the site, court documents show.

The terminal's chief financial officer, Dan Miller, testified it will earn nearly $10 million a year from sand mining and it's a "critical part of the business plan, not incidental," according to court transcripts.

On Tuesday, Romaine said: "We are not for or against BRT, we're against people not adhering to the rule of law and adversely affecting the environment."

The terminal owners claim that federal approval granted to the initial 28-acre parcel trumps state environmental regulations and local town ordinances and that the 2010 federal approval for the initial site extends to the subsequently purchased 93 acres which adjoin it -- and another 236-acre parcel purchased last year from Suffolk County.

The town disputes this, claiming the additional 93 acres and any other land purchases raise a land-use question that falls within the town's jurisdiction.

The original 28-acre tract, which forms a triangle directly south of Exit 66 on the Long Island Expressway, is not affected by the stop work order and the depot continues to operate, serving customers bringing products ranging from flour, biodiesel fuels, crushed stone, home-building materials -- even bentonite used to line the Brookhaven Town dump.

It also exports interstate used cooking oil from Long Island restaurants and, separately, waste automotive oil that can be reprocessed and reused.

The nub of the dispute dates to 2010 when the federal Surface Transportation Board approved the terminal's initial site as a short line railroad. The railroad authority required grading of the site for safety reasons so that 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 and residents, as well as officials at the state Department of Environmental Conservation, that illegal sand mining might be occurring.

DEC officials noted that without the federal approval, the owners would have been required under New York State law to seek a permit for mining.

Meanwhile, as news of the dumping scandal in Islip swirled last month, the terminal owners moved to test recycled materials they had trucked to the site for the expansion development, as well as materials they say were already at the site at the time they purchased the various parcels of property.

Results of that testing, conducted by an independent environmental consultancy and viewed by Newsday, show no presence of contaminants at any concentration that would violate NYSDEC regulations.

The terminal is a privately run facility owned by Brookhaven Rail Operations. Spokeswoman Judy White said the owners had kept the town informed throughout the project and called the lawsuit and "troubling and unwarranted."

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