Alan Muller, Executive Director
Box 69. One Stewart Street
Port Penn, DE 19731 USA
September 10, 2014
Mr, Robert Haynes, Hearing Officer
Delaware Department of Natural Resources and Environmental Control
Regarding: Peninsula Composting–Renewal, or not, of “Beneficial Use Determination”
Dear Mr. Haynes:
Green Delaware recommends, reluctantly, that the Beneficial Use Determination and other approvals for Peninsula Composting (sometimes known as the Wilmington Organics Recycling Center, WORC) not be renewed, and that the facility be required to close.
We do this in spite of the fact that composting (aerobic digestion) is generally regarded as the most desirable means of managing the “organic” fraction of municipal wastes. Green Delaware, in general, favors composting. It is extremely unfortunate that Delaware communities have yet again been given a “message” that “recycling” involves sacrifices in quality of life. This outcome could and should have been avoided.
However desirable in general an activity may be, every project needs to be carefully considered on its own merits. When the Peninsula Composting project first surfaced in 2007, we expressed many concerns, including:
o It would be a large operation (700 tons per day/ 160,000 tons per year, larger than any other US composting operation outside of perhaps a couple in California) that would bring hundreds of tons per day of often-rotten food waste from surrounding states; a much larger operation than needed to meet Delaware needs. Because of the distances, food waste would have a chance to get stinky before it even entered the composting process;
o Composting is essentially a controlled form of rotting. As such, it has an inherent potential to cause odor problems, and the larger the facility, the greater that potential;
o Odors are inherently hard to measure, hard to monitor for, etc. Thus, odor problems tend to be hard for regulatory agencies to manage;
o The facility was not sized or planned to meet Delaware waste management needs. Thus, the state would take on additional environmental/quality of life burdens with relatively little benefit (Note: The Peninsula Composting “Operations Plan” suggests that much of the feed material is “expected” to come from Delaware.);
o It would be located in a classic “environmental justice” (lower income, people of color) community already burdened by many health and environmental problems;
o Some of those involved had a history of causing environmental problems;
o Delaware’s only prior experience with a large-scale composting operation involved the Delaware Solid Waste Authority at Pigeon Point. This 575 tons per day (If my memory serves correctly) started up in the 1980s. It was shut down after causing severe odor problems.
So, from our point of view it is not surprising that the Peninsula Composting facility has turned out to be problematic and that there are many calls from elected officials and others for the facility to be closed. It was predictable.
“Community Benefits Agreement”
Peninsula Composting and (reportedly) 19 parties signed a “Community Benefits Agreement” with Peninsula Composting in 2008. Green Delaware not a party to this agreement and was not consulted by any of the signing parties. We are awaiting a copy of this Agreement. A presentation by the then-President of the Southbridge Civic Association describes “Benefits for the Developer” as including “(1) Support request for zoning variances,” “(2) Support request for infrastructure assistance,” and “(3) Local support for state permits.” Green Delaware’s perception is that through this “Agreement,” community leaders were manipulated into supporting the Peninsula Composting project without due diligence as to the likely impact on their communities. it appears to us that the communities have received minimal benefits from the “Community Benefits Agreement” and the presence of Peninsula Composting has been a net loss to the communities.
This “Agreement” should be included in the record, because it is mentioned in DNREC documents, and apparently influenced the original approval. We hereby incorporate it by reference into our comments.
Regulatory History of Peninsula Composting
The history of the DNREC’s interactions with Peninsula Composting is somewhat complex. The Department has provided a very incomplete listing of relevant documents here. A full listing of documents would be very helpful to understanding the situation and should be provided by the DNREC. Green Delaware has compiled a partial chronology and document listing as follows:
Dec 12, 2007 City of Wilmington “special exception” zoning approval
Fed 27, 2008 “special exception” approved (after the fact) by Wilmington Board of Adjustment
April 3, 2008. Public Hearing on Delaware Coastal Zone Act permit application
May 15, 2008 Secretary’s Order No. 2008-CZ-0019 granting Coastal Zone Act Permit
Aug 25, 2008 Beneficial Use Determination (in effect, the operating permit) issued. Expires Sept 26, 2014
Aug 19, 2011 Notice of Violation No. 11-SW-27 issued for numerous violations
June 7, 2012 Notice of Violation No. 12-SW-43 issued for numerous similar violations
Feb 25, 2013 DNREC “Compliance Inspection” reveals numerous violations of the BUD, and other problems
March 11, 2013 Notice of Violation No. 13-SW-03 issued
April 24, 2013 DNREC “compliance assessment” found that “…a majority of the violations were continuing and one additional violation was noted.”
July 26, 2013 Notice of Conciliation Proceedings, Administrative Penalty Assessment and Secretary’s Order. “… a total of 12 violations in this Order.”
Sept 26, 2013 “BUD renewal” (details?)
Dec 6, 2013 Amended Notice of Conciliation Proceedings, Administrative Penalty Assessment and Secretary’s Order
March 6, 2014 Amended Secretary’s Order–modified Beneficial Use Determination
April 23, 2014 Second Amended Notice of Conciliation Proceedings, Administrative Penalty Assessment and Secretary’s Order “…storage of feedstocks, unscreened compost, and finished produce outside of BUD-approved boundary limits, without any type of approval from the Department.”
May 5, 2014 letter from Nancy Marker–further modifications to Beneficial Use Determination
July 15, 2014 Beneficial Use Determination Application [for renewal]
Aug 26, 2014 Most recent known inspection of facility by DNREC
Aug 28, 2014 Public Hearing on renewal of “Beneficial Use Determination”
These documents reveals an egregious pattern of non-compliance with the (loose, in our opinion) regulations of the DNREC. DNREC staff have indicated to us that as of the August 26th inspection, the facility was “mostly” in compliance but that odor problems continue. This strongly suggests that the facility is unwilling and/or unable to operate without causing odor nuisances. Renewal of the “BUD” should be denied and the facility permanently close.
Usually, one would expect problems to decrease with time as facility operators became more proficient. In this case it appears that complaints are increasing with time, after about six years of operation. It has been suggested that this is because the facility is handling more materials. Regardless of the reason, the pattern of increasing odor problems in spite of enforcement activity, repeated modifications of the “BUD,” etc, suggests that a better future for this facility is unlikely. Renewal of the “BUD” should be denied and the facility permanently closed.
A public hearing was held on August 28, 2014. The record was left open for comment until September 10, 2014. We requested a copy of the transcript, saying: “It would be appropriate for the transcript to be available at least a week before closing of the record, to give members of the public an opportunity to review it and submit comments.” I write this on September 9, 2014 and the transcript has not been provided. Without the transcript it is difficult to comment intelligently, difficult to know what documents have been put into the record, and so on. We again request that the transcript be provided and the record be held open for a week following.
As noted above, a public hearing on a Coastal Zone permit application was held on April 3, 2008. It appears that various representations were made at that time, and these should be considered in light of the subsequent history of the facility and the request for approval of continued operation. Green Delaware has requested the transcript of this hearing but has not received it. If expectations and promises have not been born out, this should weigh against approval of continued operation. Green Delaware again asks that this transcript be provided, and that the record be held open for one week afterwards.
Recently, Green Delaware has been in contact with WL Gore & Co., the suppliers of the covered windrow technology used at the facility, Nelson Widell, original promoter of the project, Marvin Thomas, former leader of the Southbridge Civic Association, DNREC officials, and others. Repeated calls to Mr. Andrew DiSabatino, head of Peninsula Compost Company, have not been returned. These conversations have been interesting but no one has been willing and/or able to identify a soluble problem. This weighs against approval of continued operation. Renewal of the “BUD” should be denied and the facility permanently closed.
Inadequate description/understanding of process
The “BUD contains operating limitations expressed in tons, applying to feedstocks, intermediate materials, and amounts allowed to be stored. The Coastal Zone Permit appears to set an output limit but this is expressed in cubic yards. It is difficult to compare weight and volume of variable materials. No documents we have seen provide a solid process description with material, energy, and moisture balances. This makes it difficult to evaluate the process. Composting is a biological process highly sensitive to temperature, but the effects of seasonal variations are not described. Air emissions have been estimated to be 1.9 tons per year but the basis for this is not apparent. It is not clear that either Peninsula Composting or the DNREC have sought to determine the chemical makeup of the odor-causing emissions, or how these may vary with time and temperature. Without this information it is difficult to pin down the causes of odor complaints. For example, if the odoriferous substances are reduced sulfur compounds, one would suspect that at some point or in some places, materials are “going anaerobic.” At one point, the DNREC required Peninsula Composting to retain a consultant and the resulting report was to be provided to the Department. This report, if it exists, should be made available to Green Delaware and others.
In general a “Beneficial Use Determination” focuses on the characteristics of a material or product, not the process of making the product. [note: This sentence has been corrected.] A BUD may not be a truly appropriate regulatory tool for a facility such as Peninsula Composting.
Environmental Justice considerations
There is probably no dispute that the Peninsula Composting facility is located amongst “environmental justice” communities, that were, prior to the startup of the facility, already experiencing “disproportionate impacts.”
Executive Order No. 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.” (Clinton, 1994) established that Title VI of the US Civil Rights Act applies to environmental permitting in which there is a Federal component such as delegated Federal authority and/or funding. Thus, the Order applies to this matter.
The USEPA has defined Environmental Justice as follows:
“Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. EPA has this goal for all communities and persons across this Nation. It will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.”
Both EPA and the DNREC have been very slow to incorporate Environmental Justice considerations into permitting and enforcement. More recently EPA has begun to include “EJ” in its “Performance Partnership” agreements with states, and has published documents such as “Considering Environmental Justice in Permitting.” So far as we are aware the DNREC lacks meaningful Environmental Justice policies and procedures. The present situation can be seen as a consequence of that. The DNREC should not renew any permits or BUDs for Peninsula Composting without conducting a meaningful “impacts analysis” to determine the extent of “disproportionate impact” burdening the community. Green Delaware considers that any honest analysis must conclude that the present location is unacceptable and continued operation should not be allowed.
It is our understanding that waste materials from Peninsula Composting are sent to the infamous Covanta incinerator in Chester City, PA. Chester is one of the most notorious examples of “environmental injustice” in the US and Covanta is a notorious “environmental injustice” corporation. Chester residents have been fighting for years to shut down “their” incinerator. No Delaware wastes of any kind should be allowed to go to Covanta’s Chester incinerator.
The record should be kept open and the documents requested by Green Delaware should be provided.
For numerous reasons the Peninsula Composting facility should not be allowed to continue to operate. The location is unacceptable, the technology in use is not working, and there is no history of good faith compliance. Numerous elected officials including the Mayor of Wilmington, the New Castle County Executive, and members of the Delaware General Assembly have called for Peninsula Composting to be shut down. Surrounding communities apparently regret the “Community Benefits Agreement” and want the facility closed.
We understand that the DNREC has active permits for three composting operations, and only two of these are operating. Peninsula is much larger than the others. Two large composting operations have been tried in Delaware and both have created widespread public nuisance and needed to be shut down. The obvious conclusion is that the DNREC lacks the capability to understand and regulate such facilities effectively. The DNREC should conduct an agency-wide, systemic review of the policies and procedures necessary to regulate composting effectively and ensure that problems don’t recur. The Solid and Hazardous waste regulations, inadequate in many respects, should be amended accordingly. Until this is accomplished, with substantial public participation, no more composting operations should be permitted in Delaware.
Alan Muller, Executive Director
Governor Jack Markell
DNREC Secretary David Small
Ali Mirzhakalili, Director, Air Quality
EPA Regional Administrator Shawn Garvin
Mindy Anthony, DNREC