Yet DNREC Secy. O’Mara concludes the project is clean because it will reduce septic tank pollution
"In effect, the DNREC seems to be cheerleading for this project rather than evaluating it carefully."
Will the Markell administration enforce the Delaware Coastal Zone Act?
"Tidewater states that the facility, at full build-out of three (3) million gallons a day, will provide service to 8,400 new connections or Equivalent Dwelling Units (EDUs) and allow for elimination of 1,600 existing on-site septic systems."
"DOVER ï¿½ The Department of Natural Resources and Environmental Control will conduct a public hearing May 19 on Tidewater Environmental Services Inc.ï¿½s application for a Coastal Zone permit to build a regional wastewater treatment facility. The hearing will begin at 6 p.m. at the Lewes Fire Co.ï¿½s Station 3, 21914 John J. Williams Highway (Del. 24) in Lewes."
Background on the Delaware Coastal Zone Act
The Delaware Coastal Zone Act (CZA) was passed in 1971 to preserve a strip along Delaware’s coastline "primarily for recreation and tourism." The immediate cause was a plan by Shell Oil to build a second huge oil refinery in Delaware.
The basics of the law are that "new heavy industry" is banned in the Coastal Zone. Non-heavy industry is allowed under permit, and many activities, such as residential sprawl development, aren’t regulated at all under the CZA. The Act is administered by the Department of Natural Resources and Environmental Control (DNREC) and there exists a Coastal Zone Industrial Control Board to make regulations and hear appeals.
For decades "environmental" and industrial/labor interests have contended over the CZA. In the beginning, the Federal government opposed it, wanting to increase oil imports and further line the Delaware river with oil terminals and refineries. Progressive Republican Governor Russ Peterson stood up to the Nixon administration and much other opposition.
The record of enforcement is mixed. A recent poor example is the granting by DNREC of a permit for a zinc-coating plant near New Castle, a facility that seems clearly "heavy industry." DNREC staff, it appeared, passively accepted information from the applicants without a proper independent investigation.
Occasionally the General Assembly and Governor have given exemptions from the CZA, such as one allowing the restart of a steel mill in Claymont that had a decades-long record of causing environmental problems and presently, under Russian ownership, torments its neighbors with dust emissions.
But while the CZA has sometimes failed, and has limitations, it’s surely done Delaware a lot of good. Several years ago Green Delaware was involved in a controversy over plans of Shell (the same) to build a "liquefied natural gas" (LNG) terminal across from Claymont on the New Jersey side of the Delaware River. For historical reasons Delaware owns the river to the Jersey shore, and this gave the Delaware CZA jurisdiction. Delaware declined to allow the facility, which New Jersey politicians promoted. The case went to the United States Supreme Court and Delaware prevailed. Had the facility been built it would now be sitting unused as natural gas prices have collapsed.
More recently, an oil "recycling" facility with a history of spills, leaks and "Natural Resources Damage Assessments" at its Wilmington riverbank location sought to move into the Coastal Zone. DNREC properly decided that this facility would be "heavy industry" and as such be prohibited in the Coastal Zone. Green Delaware’s comments on this are here.
Many other undesirable facilities have simply never tried to locate in the Coastal Zone because of the well-known law.
Now, a disturbing Coastal Zone case involves a proposed sewage treatment plant in Sussex County.
To understand it we need to first consider a key weakening of the Coastal Zone Act that took place in 1999 when DNREC, with the connivance of selected–for their servility–"environmental" representatives, adopted regulations grafting onto the CZA the concept of "offsets." This means that a facility could be allowed if pollution from it were to be "offset" by planting trees, or giving money to the Department of Natural Resources and Environmental Control, etc. Green Delaware opposed these regulations but we didn’t prevail. We wrote:
- Port Penn, DE. November 17, 1998. One of Delaware’s most important laws is its Coastal Zone Act, passed in 1971. It says: "The coastal areas of Delaware are the most critical areas for the future of the State in terms of the quality of life in the State….it is the policy of the State to control the location, extent, and type of industrial development [to] better protect the natural environment of its bay and coastal areas and safeguard their use primarily for recreation and tourism….This … [law] …seeks to prohibit entirely the construction of new heavy industry in ….coastal areas, which industry is determined to be incompatible with the protection of that natural environment in those areas……"
- Working through Del. Gov. Tom Carper, heavy industries operating in the Coastal Zone (including DuPont, Delmarva Power, and Texaco) are poised to gut the Coastal Zone Act. In a key victory, they got the Sierra Club, the Del. Audubon Society, and the Del. "Nature" Society to sign a "Memorandum of Agreement" reinterpreting the Act in favor of industry. No members of the "recreation and tourism " industries, or fishermen, or watermen, participated in this "Agreement."
- Lets compare the Act to the "Agreement:" The ACT says "… construction of industrial plants in the coastal zone … is declared to be against public policy." The AGREEMENT says "the regulatory process should be designed to that each heavy industry facility can obtain permits to add new products, change existing products, increase production capacity, add new processes and modify existing processes…. Such a regulatory process has been developed. Among it’s provisions:
- Industry may increase pollution in the Zone in return for "offsetting." For example, a refinery could put out more air pollution in return for promising to plant trees. This is called "environmental improvement." We think it’s a scheme to let state agencies "shake down" industries in return for allowing more pollution. "Environmental indicators" chosen and interpreted by the State (read "Industry") are to be monitored. How this would protect the Coastal Zone from industrial pollution is unclear. A "technical advisory committee" is already at work developing "indicators." Its 17 members include one identified as an "environmental advocate" and many major polluters.
(By the way, the Consensus Building Institute hired by then-Governor Tom Carper’s office to engineer this scheme is the same outfit more recently hired by New Castle County Executive "Evil Chris" Coons to engineer a weakening of the county development regulations.)
Back to the sewer plant: DNREC’s evaluation of this undesirable project is inadequate.
The following is from an email sent to DNREC Secretary Collin O’Mara and others about this project several weeks ago. We received no response:
- The Coastal Zone Act regulations themselves are very unsatisfactory, including the provisions for public participation. For this I consider the Delaware Nature Society, Delaware Audubon Society, Sierra Club, and League of Women Voters primarily responsible, as they rolled over to then-Governor Tom Carper’s desire to weaken the CZA.
- The "SECRETARY’S ENVIRONMENTAL ASSESSMENT REPORT." (This and other documents are here: http://www.dnrec.delaware.gov/Admin/CZA/Pages/default.aspx) apparently signed by Secretary Collin O’Mara on April 23rd, 2010, concludes that
- "The project exceeds the regulatory offset requirement." Essentially, the argument is that the project is its own offset, because concentrations of Nitrogen and Phosphorus compounds in discharged waste waters (effluent) will be lower than from septic systems. This might be a reasonable conclusion if the purpose of the project was simply to replace existing septic systems. But this is not the case. From the document:
- "Tidewater states that the facility, at full build-out of three (3) million gallons a day, will provide service to 8,400 new connections or Equivalent Dwelling Units (EDUs) and allow for elimination of 1,600 existing on-site septic systems."
- Doubtless many of most of these "8,400 new connections" could not occur in the absence of central sewer service. Therefore, any adequate analysis of the impacts of the proposal would require assessment of the additional development enabled by the proposal and the impacts of that. These impacts would include air pollutants, water pollutants, reduced recharge due to the increase of impermeable surface, and so on. Without this broader analysis the DNREC can’t offer a meaningful "environmental assessment."
- Repeated mention is made of aquifer recharge. However, the project is near Love Creek and much of the effluent from "rapid infiltration" would soon appear in the surface waters of Love Creek. The report lacks any discussion of the present condition of Love Creek and the likely impacts on same. ("Rapid Infiltration Basins," "RIBS," are essentially trenches or ponds with sand/gravel bottoms, designed to leak their contents into the underlying aquifers "rapidly.")
- The report states:
- "Approximately 8,000 pounds per day of biosolids [sludge] will be generated from the treatment process at build out capacity; they will be transported to a disposal site outside of the Coastal Zone."
- Nothing is said about the nature of this sludge and the impacts of disposing of it.
- While no numbers (pounds) for reduction (or increase?) of Nitrogen and Phosphorus discharges associated with wastewater are provided, the report states:
- "Tidewater estimates that the TN and TP reduction caused by taking 25.3 acres of farm field out of service based on historical commercial fertilizer application rates is estimated to be approximately 1,916 and 981 pounds per year, respectively."
- "Using DNRECï¿½s Nutrient Loading Assessment Protocol Worksheet, an additional nitrogen and phosphorous offset of 843 and 37 pounds per year will be achieved by the proposed buffers."
- I do not know offhand how to evaluate these claims, but think they should be evaluated in detail, not accepted at face value from the applicant. It has often been stated to be a public policy in Delaware, and in Sussex County, to preserve farmland.
- Overall, the report is far from satisfactory. In effect, the DNREC seems to be cheerleading for this project rather than evaluating it carefully.
- Alan Muller, Executive Director
- Green Delaware
Have an opinion about this?
Secretary Collin Omara, 302.739.9000
Governor Jack Markell, 800.292,9570
Robert Haynes (Hearing Officer), tel. 302.739.4403 x 115, fax. 302.739.6242 (Robert.Haynes@state.de.us)
Green Delaware has requested that the record be kept open in this matter for 30 days following the public hearing. Be sure to ask that your comments be made part of the official record, or they might not be.