The Brookhaven Rail Terminal has taken no action to remove contaminated material that has been on its property in Yaphank for years, the Town of Brookhaven says in new legal papers.
The town said the rail terminal informed it that it was barred from doing anything about the material, similar to that found in landfills, because a federal court order last June barred it from further illegal sand mining on the site. In papers filed this week, the town asked the judge to immediately order the terminal to cover the fill material.
The material remains uncovered, and rain could cause lead, zinc and other substances to leach into the soil and contaminate the supply of drinking water underneath the site, the town said.
Lawyers for the town and the terminal said in documents filed late Wednesday in U.S. District Court in Central Islip that they had tried and failed to settle their dispute over sand mining and other issues.
Both sides made recommendations to U.S. Magistrate Judge Gary R. Brown on how their ongoing lawsuit should be handled and asked him to schedule a court date.
In addition to the federal lawsuit, the town and the terminal are in a protracted dispute before the U.S. Surface Transportation Board. The terminal claims it is a railroad operation that is not subject to local environmental and zoning regulations -- a claim contested by the town.
The terminal agreed last December to halt shipments of "used oil" -- which the town calls "waste oil" -- until it settles the legal and regulatory disputes.
It has argued that the fill material -- demolition remnants, tile, bone, glass, old asphalt and even a MetroCard -- was on the property when it purchased it years ago. The terminal opened in late 2011.
An attorney for the town said in a letter to the judge that an environmental consultant hired by the town submitted a report this week that "concludes that any further delay in the removal and proper disposal of the historic fill may result in contamination of Long Island's Sole Source drinking water aquifer."
The report "further notes that if this historic fill remains uncovered, it is likely to be transported from the piles by wind and storm water damage and become more widely distributed on the site," attorney Robert Calica of Garden City said in the letter.
Attorney Yonaton Aronoff of Manhattan, representing the terminal and its corporate partners, said in a letter to the judge that they would consider any offer by the town to allow a modification of Judge Brown's order so it could take action on the fill.
In a statement Thursday, Brookhaven Rail Terminal said that in 2014, it and the town conducted simultaneous environmental testing of materials found at the site. These tests confirm that no historical fill exists at the site and there was no dumping, the terminal said.
Additionally, the results show that the tested material meets all standards for the facility's industrial use, the terminal said.