Can we stop another big stink? Can we get the Coastal Zone Act enforced?

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2-stinky1448

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Is there any end to it …?

(Note:  We get that this might seem trivial compared to the giant oil and gas facilities being shoved into Delaware.  More upcoming on those.  But if we can’t enforce our environmental laws on smaller projects, how can we expect to enforce them on big ones?)

No permit (yet) but the poultry waste plant already built.  Who are they kidding?  (US)

Skids greased for polluters but public participation curtailed

Readers will know that Peninsula Composting has been ordered to shut down.  The facility is supposed to be clearing out its existing materials.  Neither Peninsula nor DNREC have been returning phone calls, so we can’t tell you a lot more.

We’ve worked up a description of how the situation developed and what went wrong.  There’s is plenty of blame to spread around.  This grew to three thousand words, so we decided not to email it.  Read it here:

Update on the Big Stink from Peninsula Compost (“Wilmington Organics Recycling Center”)

Treating people worse than garbage in Delaware?

Many of the issues and personalities of this tie into Green Delaware’s efforts over the last 20 years.  Let’s start by noting that the public hearing transcript contains no statements by the Delaware “Nature” Society, by the Sierra Club, by Delaware Audubon Society, by the Civic League for New Castle County, by the Nature Conservancy, or by the League of Women Voters,   All the these orgs supported carving the guts out of the Delaware Coastal Zone Act, opening the doors for the likes of Peninsula Composting.  Green Delaware stood alone against this, lost that fight, and we are seeing the consequences over and over again.

(We are not saying these orgs had an obligation to be involved in fighting Peninsula, but their silence illustrates a couple of problems (1) “enviro” orgs tend to advocate policies and industries, such as composting, but they are not usually around to help people cope with actual facilities in their neighborhoods, and (2) “enviro” org members tend to be white and upper-middle-class, whereas people on the front lines tend to be poor or working class, and to be people of color.)

On June 8, 2007, I was quoted in the News Journal saying this about the Peninsula Composting scheme:

Alan Muller, who directs the environmental group Green Delaware, said while the project has lofty goals, it could burden neighborhoods that suffered through previous failed efforts to compost waste at the nearby Pigeon Point Landfill.

“Who’s going to be served by this, and why should more waste disposal facilities be approved for Wilmington … because other jurisdictions are smart enough to not want them in their backyard?” Muller said.

Representatives of the most threatened communities paid no attention and signed a “Community Benefits Agreement”–some benefits!–with Peninsula Composting.

This is far from the first Big Stink to afflict Northern Delaware.

When I was a kid, county-wide stinks were blamed on wind blowing from the direction of DuPont’s Chambers Works–across the Delaware River in New Jersey.  In the 1980’s, the Delaware Solid Waste Authority (the “Dirty Authority,” read more here) ran a composting operation at Pigeon Point, between Wilmington and New Castle, that “stank people out of their homes.”  Sewage sludge was in the mix and the equipment was not able to maintain aerobic conditions.  Some years later the Dirty Authority was again stinking people out of their homes with fumes from its notorious Cherry Island Garbage Dump.  The cause in this case was negligence in collecting and burning “land fill gases” which include stinky reduced sulfur compounds such as hydrogen sulfide.  In these cases the problem was eventually abated, but only after people suffered for years.

Clean Air Act and Coastal Zone Act (CZA)

At least two laws, if properly enforced, should prevent such problems:  (1) The Clean Air Act, which is supposed to prevent “conditions of air pollution,” including odors.  This is a Federal law delegated to the Delaware DNREC for enforcement.  (2) The Delaware Coastal Zone Act (1971), probably the only significant environmental regulatory concept to originate in Delaware, and to some extent a model for state and federal laws elsewhere.

The Coastal Zone Act was championed by Gov. Russ Peterson–a Republican–for the immediate purpose of stopping Shell Oil from building another oil refinery in Delaware.  Given the horror show of the Delaware City Refinery, just enough people realized that Delaware really couldn’t stand another refinery.  Peterson successfully defied the Nixon administration, which wanted to see a lot more foreign oil coming up the Delaware River.

The law is fairly simple, or was until “the enviros” threw it under the bus to provide more “flexibility” for industrial interests.  See this Green Delaware Alert from 1998.

The protected Coastal Zone is generally the area between Route 9 and the Delaware River (Coastal Zone map, for some reason the DNREC seems reluctant to post adequately detailed maps.)

See what the Coastal Zone Act says:

“It is hereby determined that 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, therefore, the declared public policy of the State to control the location, extent and type of industrial development in Delaware’s coastal areas. In so doing, the State can better protect the natural environment of its bay and coastal areas and safeguard their use primarily for recreation and tourism. Specifically, this chapter seeks to prohibit entirely the construction of new heavy industry in its coastal areas, which industry is determined to be incompatible with the protection of that natural environment in those areas. While it is the declared public policy of the State to encourage the introduction of new industry into Delaware, the protection of the environment, natural beauty and recreation potential of the State is also of great concern. In order to strike the correct balance between these 2 policies, careful planning based on a thorough understanding of Delaware’s potential and the State’s needs is required. Therefore, control of industrial development other than that of heavy industry in the coastal zone of Delaware through a permit system at the state level is called for. It is further determined that offshore bulk product transfer facilities represent a significant danger of pollution to the coastal zone and generate pressure for the construction of industrial plants in the coastal zone, which construction is declared to be against public policy. For these reasons, prohibition against bulk product transfer facilities in the coastal zone is deemed imperative.”

Need we say it?  Many industrial interests have never liked this law.  After the CZA passed, they–mainly DuPont– threw Peterson out of office and installed as Governor an amiable and more obedient small-town hardware store owner (Sherman W. Tribbitt).

Traditionally, citizens defended the CZA.  But 1971 was 43 years ago, at a time when Delaware’s political system was functioning better.  People have died off; institutional memory and political will have weakened.  The environmental threats and challenges have only grown.

Overall, most informed observers would likely agree that the CZA has served Delaware well.  Few permits have been denied but many have not been applied for.  For a look at what Delaware’s coast might now look like without the CZA, take a look at Chester City, PA, Marcus Hook, PA, Camden NJ, or South Philadelphia’s waterfront.  (With apologies to these neighbors.)

Those instances where the CZA has NOT been enforced have brought us the Claymont steel plant mess, the Delaware City Refinery reopening, including the massive oil train unloading operation for volatile Baaken crude oil (the very model of a “new bulk transfer facility”), Peninsula Composting, a troubled oil recycling plant on the Christina in Wilmington, a DSWA garbage burner that belched out “extremely high  levels” of dioxins, and more.

So, the DNREC’s “Environmental Assessment” of the Peninsula Composting project was a farce, mentioning only a “slight possibility” of odors.  Very little if any independent investigation was done.  Why?  Because the Coastal Zone staff’s marching orders seem to aim at skid-greasing and promoting, rather than critical analysis.

Has anyone in the DNREC, the City of Wilmington, or any other of the skid-greasers responsible for the composting debacle offered any sort of apology to the citizens who suffered?  If so, we haven’t heard it.  The City of Wilmington did NOT take a clear “shut it down” position.

Has the Markell administration learned any lessons?

Now, with the Peninsula Composting debacle immediately behind us, we are looking a NEW potential debacle in the face: the “Green Recovery Technologies” rendering plant–or partial rendering plant–proposed for the Riveredge Industrial Park in the City of New Castle.

This facility is about solvent extraction of oils from poultry waste sludge, supposedly to be shipped up from the Carolinas.  This would appear to have great potential to cause odor problems, and seems an example of the “new heavy industry” not allowed in the Coastal Zone.  Green Delaware hasn’t finished our analysis of the paperwork for this, and we need more information.

At the moment, a public hearing has been held and the public comment period is scheduled to close on Friday, November 14, 2014.  After that, the DNREC–doubtless in collaboration with the applicant–will produce a “Technical Response Memorandum” claiming that public concerns are unjustified and a permit should be issued.  The public will not have an opportunity to review or refute the conclusions in this document.  Green Delaware and others are asking for more time, but Hearing Officer Lisa Vest is saying “no.”

Overall, this procedure is designed to give members of the public an opportunity to let off steam, and for elected officials and DNREC bureaucrats to gauge the level of political opposition.  But it does not provide a sound means of hashing out the technical issues, and determining the true merits of the application and it’s compliance with the law.

Below is one of our notes to the DNREC seeking more information (See the whole chain of email correspondence, and links to various documents, here.)Nov 3, 2014

To:  “Cherry, Philip J. (DNREC)” <Philip.Cherry@state.de.us>, “Coyle, Kevin F. (DNREC)” <Kevin.Coyle@state.de.us>

Gentlemen:

I have just read the transcript of the October 33, 2014, “public hearing” on this Coastal Zone Act permit application.

(1) Does the Dept. plan to prepare a response document? If so, will the public be allowed to respond to that? (It is my impression that the DNREC has unilaterally altered the character of administrative proceedings such as to largely exclude the public from meaningful participation, as “parties” or otherwise.) I request that other parties–I realize that the DNREC does not like to consider mere citizens “parties” to it’s proceedings, so choose you own term–be allowed to respond on the record if the DNREC produces a response document. That is only fair…..

(2) Are the DNREC exhibits and other materials posted on line? If so, where? If not, I request that they be posted promptly and/or provided to me directly.

(3) Pursuant to the Delaware Freedom of Information Act, I hereby request all correspondence and documents of any sort that have passed between the DNREC (or other agencies such as the DEDO but that the DNREC has seen or received copies of) and representatives or promoters of, or investors in, “Green Recovery Technologies” and/or predecessors. Time is of the essence in receiving a prompt reply to this request.

(4) I request that the record be kept open until two weeks after the materials requested in (1) and (3) have been provided.

(5) There seems to be no question that the applicant began construction before obtaining a Coastal Zone permit. This gives the impression that the DNREC must have signaled the applicant, formally or otherwise, that the issuance of a permit would be a foregone conclusion. Is this so? (The Hearing Officer repeatedly stated on the record that the DNREC has made no decisions, but I am not sure if this is believable.) Does the DNREC have any policies or procedures regarding commencement of construction before issuance of a permit? If so, what are they?

(6) In the matter of Peninsula Composting, we (Green Delaware) determined that the DNREC did not conduct a “due diligence” independent investigation before stating in it’s “Environmental Assessment” that the possibility of odors was “slight,” etc. If the DNREC had carried out its responsibilities, that is, acted as a competent regulator rather than cheerleader/promoter, many people could have been spared harm to their health and quality of life. I bring this up here because we want to know if the DNREC has learned any lessons from the Peninsula Compost episode and, if so, how these lessons are being applied to the “Green Recovery Technologies” application. Here again we have a facility that prima facie, does not belong in the Coastal Zone; that is part of a rendering process for animal wastes, something with great potential to cause odor problems. So I request, to the extent I have not already in the above items, a full and clear description of how the DNREC has independently investigated the proposed “Green Recovery Technologies” facility. In particular, does the DNREC know if the selfsame process has been *commercially* demonstrated elsewhere at similar scale, with what results, or if this is to be yet another *experiment* performed on the lungs and noses of Delawareans.

If any of these requests are unclear please contact me for clarification.

Yours very truly,

Alan Muller

Alan Muller, Executive Director
Green Delaware

For an example of how pervasive the attacks on public participation have been see this item from 2003.

ACTION ITEM:  Send a not to the the Secretary of DNREC, Dave Small, and to Gov. Markell, asking for the same information Green Delaware has requested, plus what YOU want to know.  Send Green Delaware a copy of your request.  Ask that the public comment period be extended 30 days and that the public be allowed to review and respond to the DNREC’s “Technical Response Memorandum” before decisions are made.

David.Small@state.de.us

Jack.Markell@state.de.us

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