Green Delaware letter about proposed “Warrendale” sewer plant in Sussex County

June 1, 2010

Secretary Collin O’Mara

Hearing Officer Robert Haynes

Dear Mr. Haynes and Secretary O’Mara:

These are additional comments regarding the “Warrendale” project.  We previously submitted for the record Green Delaware Alert 683: Public hearing on new sewer plant May 19, 2010 .

Numerous objections to this project have been stated by public and private entities.

For example, on June 13, 2008, the Office of State Planning Coordination (“PLUS”) wrote:

The State does not support this facility as it will be in conflict with the Strategies for State Policies and Spending and would increase the pressure to build in the Level 4 areas of the County. While we support eliminating existing septic tanks, this facility is inconsistent with the current Sussex County comprehensive plan and as designed it will serve new development within the Low Density Area as defined by the County. Finally at the PLUS meeting the applicant could not produce a finalized document which addresses our concerns or those raised by Sussex County and until such time that a formal agreement has been reached with Sussex County and efforts have been made to address the environmental and land use impacts, this office cannot support this application.

This document contains the following comments from other agencies:

DNREC:

The Rapid Infiltration Basin (RIB) proposed on the northern portion on the combined parcel area should not be sited adjacent to the headwater tributary connected to Love Creek, nor should forest cover be removed to accommodate it. Doing so will increase the volume of water discharged to the creek while potentially decreasing water quality. DNREC strongly recommends that the RIB system be relocated to a more suitable location and the forest cover retained.

… the project falls within a wellhead protection area for Tidewater Utilities (TWU) Love Woods, PWSID 00A0329 (see following map and attached map). Wellhead protection areas are surface and
subsurface areas surrounding a public water supply well where the quantity and quality of ground water moving toward these wells may be adversely affected by land use activities.
The site plan submitted by the Developer show Rapid Infiltration Basins (RIBs) Area B in the northwest corner of tax map parcel 234-7.00-127.00. According to the Delaware
Geological Survey ground water elevation GIS overlays, this RIB system is approximately 360 feet up-gradient of the TWU wells (see map). As cited, this RIB system is a potential source of contamination if there is a failure in the system that may
cause the TWU Public Drinking Water System to exceed drinking water standards. In addition, according to the 2002 Land Use GIS overlay, the RIB system is cited in a wetland.
By design, RIB systems infiltrate water into the soil profile at a rapid rate.Wetlands do not allow for the designed purpose.
Recommendation:
1) Move Rapid Infiltration Basins (RIB) Area B to another location outside the wetland and down or side-gradient of the TWU wells.

DNREC program staff have never surveyed the project area; therefore, it is unknown if State-rare or federally listed plants and animals or unique natural communities are present
within the project area. In order to provide the applicant with information, the program staff respectfully requests the opportunity to survey the project area.

Delaware Department of Agriculture

The Delaware Department of Agriculture does not support this infrastructure project at this time because it has not been coordinated with Sussex County and their future sewer supported
growth areas. The Department is also opposed to providing sewer service to areas currently designated as Investment Level 4 under the Strategies for State Policies and
Spending

.

It is disturbing that this document was not introduced as an exhibit by the DNREC during the public hearing held on May 19. 2010 (Transcript posted here).

It is unclear on the record to what extent the concerns contained in the “PLUS” letter have been addressed.

Comments and/or testimony opposing the proposal have been submitted by Plan Delaware, the Southern Delaware Group of the Sierra Club, The Delaware “Nature” Society, the Center for the Inland Bays, the League of Women Voters, the Citizens’ Coalition, Mr. Bill Moyer, Mr. John Austin, and others.

This segment from the hearing transcript is interesting:

15   Bruce
16        Patrick.  I’m vice-president of engineering with
17        Tidewater Environmental Services.  First I’d like
18        to thank the hearing officer for the opportunity
19        to present our proposal.
20                     Before I get into the proposal, I’d
21        like to give you a brief background on ourselves
22        and our company.  I’m a registered professional
23        engineer with 18 years experience in the water
24        and wastewater industry.  I have experience in
11
1        design and permitting, construction, essentially
2        utility management; experience in owning and
3        operating water, wastewater systems, providing
4        retail facilities services.
5                     I worked six years at the Department
6        of Natural Resources Environmental Control in the
7        large systems permitting section, where over half
8        of that time I spent as a program manager
9        overseeing large systems permitting and spray
10        irrigation permitting.  Very similar to what
11        we’re proposing at the Wandendale facility.
12                     Additionally, I spent a little over
13        three years as the Kent County engineer, where I
14        oversaw the state’s second largest regional
15        wastewater facility.

The fact that Tidewaters’s representatives saw fit to testify about their previous employment with the DNREC suggests to me that a “revolving door” preference is sought.

The “Environmental Assessment” generated by the DNREC makes no mention of the numerous concerns generated within and without the Department, suggesting that something is seriously wrong with the handling of Coastal Zone Act permitting.

The head of Tidewater, Jerry Esposito, is a long-time former Director of the DNREC Division of Water Resources.  Mr. Esposito is also associated with the “Positive Growth Alliance.”

The  Environmental Assessment relies on applicant’s projections that the concentrations of certain contaminants in the effluent will be at levels claimed to be low.  However, it is not clear to us that the actual permit limits sought will the same.  This segment of the transcript is interesting:

[Mr. Patrick speaking]
14
14    Construction permits.  We have to
15        get a construction permit from DNREC to construct
16        our facility.  And I’ll get into some of the
17        details later, but to get the construction
18        permit, there’s a lot of technical review and
19        approvals prior to that, such as the soils
20        approval, the hydrogeological approvals, the
21        actual plans and specifications being prepared
22        and approved. [emphasis added] It’s a rather lengthy process that

23        we’ll talk about later.  But that’s one of the
24        approvals.
15
1                     Another approval is the actual
2        operating permit that we would have to get, that
3        demonstrates, that would give us parameters,  [emphasis added] that
4        we would have to discharge in accordance with
5        those parameters and assure them we’re meeting
6        the discharge requirements.
7                     The Coastal Zone Act is another one,
8        and that’s the reason that we’re here this
9        evening.  Under the Coastal Zone regulations,
10        DNREC staff performed an environmental
11        assessment, which Mr. Coyle referred to.  We
12        agreed with their assessment that was performed.
13                     And as I’ve mentioned, I’d like to
14        point out that the Coastal Zone Act approval is
15        not the approval to construct the facility or
16        operate the facility.  It’s DNREC approval
17        essentially to let us use the site for this
18        intended purpose, and states that the
19        environmental impacts are minimized.
20                     So, again, we’ll have to go through
21        those other steps on the construction and
22        operating permits, as he mentioned, and there
23        will be opportunities for public comment at those
24        times.
16
1                     At those times is where we’ll really
2        get into the technical details. [emphasis added] Our engineers,

3        our scientists, will prepare those specs, and the
4        DNREC technical staff will also review those and
5        verify that we’re meeting the Pollution Control
6        Strategy that’s been established for the inland
7        bays , and we’re protecting the groundwater; that

8        we’re meeting all of those environmental

The Performance Standard level 1 in the “REGULATIONS GOVERNING THE POLLUTION CONTROL STRATEGY FOR THE INDIAN RIVER, INDIAN RIVER BAY, REHOBOTH BAY AND LITTLE ASSAWOMAN BAY WATERSHEDS appears to be 5 mg/l for Nitrogen and 3.9 mg/l for Phosphorus.

The application and the “Environmental Assessment” cite levels of 5 mg/l for N and 0.5 for P.  But it is not clear, especially considering the above testimony, that Tidewater may not subsequently argue for higher permit limits.

We agree with the concerns about the air quality impacts of spray application of effluent cited by Chris Bason of the Center for the Inland Bays.

Conclusions and Recommendations

Delaware’s criteria for the siting of “RIBS” are lax.

Even by these lax criteria, the proposed siting of RIBs adjacent to Love Creek is inappropriate.

Love Creek and other waters in the area are waters of Exceptional Recreational and Ecological and Significance (ERES waters).

ERES waters are designated categorically for elevated levels of protection.

The waters of Love Creek are severely degraded by the State’s own criteria.

The PCS state, at 3.0, POINT SOURCE IMPLEMENTATION, that:

“Permitted discharges of nutrients into the Indian River, Indian River Bay, Rehoboth Bay, Little Assawoman Bay or their tributaries under the NPDES program
shall be systematically eliminated through their NPDES renewal process.”

Yet, it appears that the proposed RIBs may in practice amount to little more than concealed outfalls, contributing to further degradation of Love Creek, defeating the intent of the PCS and the Clean Water Act.

Numerous other concerns have been identified, including but not limited to flooding, sea level rise, habitat, threatened and endangered species, promotion of sprawl development in inappropriate locations, and air pollution.

It appears that DNREC has requested but been denied an opportunity to “survey the project area” for “State-rare or federally listed plants and animals or unique natural communities.”

DNREC’s “preliminary” determination of administrative completeness was premature and erroneous.  It should be withdrawn.

The “Environmental Assessment” is incomplete and erroneous.  It should be withdrawn and reworked to address the full spectrum of issues identified by agencies and the public.

The DNREC should immediately publish a public notice that the “preliminary” determination of administrative completeness has been withdrawn.

In the alternative, a Coastal Zone Act permit for the Warrendale project should be denied.

The DNREC has unilaterally reworked the public hearing process, denying the public “party status” and making it effectively impossible to monitor what goes into the record post-hearing.  This leads to the record being backed with information supporting the Department’s preferred decision, without opportunity for review and rebuttal.  The DNREC should return to Delaware’s previous procedures that enabled the public to participate.

Respectfully submitted,

Alan Muller

Alan Muller, Executive Director
Green Delaware
Box 69
Port Penn, DE 19731 USA
302.834.3466
cell 302.299.6783
greendel@dca.net
www.greendel.org

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