Sand and gravel mines are located all over New York State. While most operate legally, there are some that operate without a permit, which poses a significant risk to their operators—and some find that out the hard way. Earlier this month, the New York State Department of Environmental Conservation (NYSDEC) entered into an Order on Consent with BlueGreen Farms, Inc., the owners of a proposed fish farm on Long Island, whereby it agreed to pay a nearly $1.3 million penalty for taking more than 200,000 yards of sand and gravel without a permit. The penalty is one of the largest of its kind that NYSDEC has issued.
According to NYSDEC, BlueGreen Farms started removing sand and gravel back in 2010, with the aim of building a hydroponic aquaculture facility. The facility was to be located in Yaphank, New York, which is in Suffolk County.
When mining is legitimately a part of a construction project, it is exempt from NYSDEC’s jurisdiction and the builder is not required to get mining permits. Nor is NYSDEC oversight required. The problem here was that while BlueGreen Farms excavated and mined millions of cubic yards of sand from the property—chiefly, legitimately, as it has a permit for a 67-acre designated area on site—it excavated nearly 200,000 yards outside of that area. Ostensibly, this was tied to the aquaculture project. In reality, even though concrete foundations for a portion of the project were poured in 2013, mining continued and BlueGreen did not develop the site any further. Spidey senses tingled: a concerned citizen complained: NYSDEC investigated. In NYSDEC’s view, the situation created an unpermitted, unlawful mining operation, which formed the basis for the Consent Order and hefty penalty.
NYSDEC Commissioner Basil Seggos was fairly blunt in his assessment and press release: New York’s stringent rules and regulations governing mining operations exist to ensure the protection of our irreplaceable natural resources. Illegal sand mining not only robs the people of Long Island of these precious resources, if done improperly, it can cause irreparable harm to our environment. New York State will continue our aggressive, on-the-ground oversight to ensure every facility complies with applicable rules and regulations and that their operations do not threaten the environment, especially Long Island’s precious sole source aquifer.
Under the Order on Consent, BlueGreen has to pay a penalty of $125,000 and contribute $600,000 to be used in a groundwater study conducted by the U.S. Geological Survey. The remainder of the fine is suspended, as long as BlueGreen complies with the Consent Order.
So, the lesson in this is a simple one: if you excavate sand and gravel for construction, but it could be interpreted to look like an unpermitted mining operation to a concerned neighbor, this case shows that NYSDEC is willing to investigate. Also be aware that if it feels the facts show the activity is illegal mining, NYSDEC may pursue a significant penalty. It is a good idea to get the advice of counsel if you find yourself in this situation.