Correspondence and documents related to the “Green Recovery Technologies” facility proposed for the City of Newcastle, DE

Updated Thursday, November 13, 2014.

Some documents in this matter are posted by the DNREC at this location.

Other documents obtained by Green Delaware are linked here (work in progress).

This is the most recent DNREC reply to our Freedom of Information Act requests:

http://www.greendel.org/wp-content/uploads/2014/11/FOIA-Request.pdf

And here are some valuable comments provided by the Delaware Audubon Society:

http://www.greendel.org/wp-content/uploads/2014/11/2014-Nov-DAS-Martell-comments-on-GRT-Coastal-Zone-Act-Permit.pdf

Below is some email correspondence between Green Delaware and the Delaware DNREC:  We will add to it as it develops.


[October 27, 2014]

Dear Lisa:

See below. I request a copy of the transcript of the hearing on this. And, when does the record close for public comment. And, do you have a sign-in sheet or other record of those attending? If so, I request it.

Thank you,

Alan Muller, Green Delaware


 

[October 27, 2014]

Mr. Muller –

Per your request, attached please find a copy of the hearing transcript from October 22nd (which was just received from the Court Reporter earlier this afternoon), along with a copy of the sign-in sheets from the night of the hearing.

Insofar as it stands right now, the hearing record remains open for public comment through close of business on Friday, October 31st. Numerous requests have already been made to extend that comment period beyond this Friday. Please be advised that I have taken such request under advisement, and a formal decision concerning the same should be forthcoming in the immediate future. Of course, if the decision to extend the comment period is made, formal notice will be published by the Department (i.e., press release, newspaper notice, etc.) immediately, so that the public is aware of the additional comment period that has been afforded in this matter.

As always, thank you for your prompt attention and participation in DNREC’s public hearing process.

Lisa A. Vest
Public Hearing Officer
State of Delaware – DNREC
89 Kings Highway
Dover, DE 19901
(302) 739-9042
Fax: (302) 739-1174


 

[October 27, 2014]

Thank you, Lisa.

Please add Green Delaware to those asking for extension of the public comment period. We would like to see the record held open for public comment at least until the end of November.

In view of the Peninsula Composting debacle, the DNREC should move with extreme caution regarding a Coastal Zone permit for a potentially stinky facility.

Correspondence I have seen suggests that the applicant has already commenced construction, which creates the impression that either (1) they do not take Delaware’s regulatory processes seriously, or (2) that they have been signaled by the Department that the issuance of a permit is a foregone conclusion, or (3) some combination of (1) and (2). I would add that the Coastal Zone program has a record, at least in recent years, of not doing due diligence, but rather regurgitating the applicants’ representations. This was the case with the Peninsula Composting “Environmental Assessment,” in which the probability of odor problems was dismissed as “slight.” Had the DNREC carried out its responsibilities competently, a great amount of annoyance, or worse, could have been avoided.

Yours very truly,

Alan Muller
Green Delaware


 

[October 28, 2014]

In response to the numerous requests voiced by members of the public at the Green Recovery Technologies’ Coastal Zone permit hearing held on October 22, 2014, please be advised that the time period for submission of public comment is hereby EXTENDED. Anyone wishing to submit public comment for the Secretary’s consideration regarding this pending matter may do so by forwarding the same to the undersigned, at the business address shown below, through close of business Friday, November 14, 2014. Please note that such comment must be submitted in written form for inclusion into the formal hearing record being compiled in this matter.

Please note that you are receiving this notice directly from me, via email, because you provided your contact information at the time of the hearing. The Department is also currently in the process of preparing a press release concerning this extension of the public comment period, as well as a formal legal notice, which will be published in the newspaper by DNREC as quickly as is possible.

As always, thank you for your prompt attention to the above, and for your participation in DNREC’s public hearing process.

Lisa A. Vest

Public Hearing Officer


 

[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


 

[Nov 5, 2014]

From: “Vest, Lisa A. (DNREC)” <Lisa.Vest@state.de.us>
To: “‘Alan Muller’ (amuller@dca.net)” <amuller@dca.net>
Subject: Green Recovery Technologies CZA permit proceeding

Mr. Muller –

I am now in receipt of your 11/3/14 email requesting various documents and additional information with regard to the Coastal Zone permit application of Green Recovery Technologies (“GRT”) which is currently pending. My apologies for the delay in responding to your request, as I have been out of the office since last Friday morning.

In response to your aforementioned email, please note the following information:

1. I have now scanned in all 9 exhibits that were entered into the formal record by the Department at the time of the 10/22/14 hearing, and have attached the same for your review. I have also instructed the responsible staff persons to place the same on the website for public view immediately.

2. There were only 2 sets of written comment that were submitted for the record at the time of the hearing: one from the League of Women Voters of Delaware, and the other from the Sierra Club (Delaware Chapter). These comments have also been scanned and attached for your review, and I have also instructed the same to be placed on the Department’s website at this time.

3. With regard to your FOIA request for additional correspondence and documents in this matter, I must leave that response to the Division of Energy & Climate, as anything not otherwise included within the Department’s exhibits (which, again, are being supplied to you at this time) is outside of my area of control. By cc of this email to Kevin Coyle, I am asking that he follow up on that request with you directly.

As you know, the record was initially left open in this particular matter to receive additional public comment through 10/31/14. Numerous requests for an extension of that time period were taken under advisement, and, as a result, the decision was subsequently made to extend the period for public comment through close of business 11/14/14, which is next Friday. Your request to once again extend the time period for which the record will remain open for additional public comment is noted, but I must deny it. The Coastal Zone permitting process is operated under particularly stringent deadlines, pursuant to current Delaware law, and therefore any further time extensions of the public comment period for this process is simply not possible in this matter.

Thus, the record will close for additional public comment next Friday, 11/14/14. At that time, I will be requesting a formal Technical Response Memorandum (TRM) from the Department’s Division of Energy & Climate, which will ask the responsible staff persons to conduct a thorough review of the record that has been developed in this matter, and provide this Hearing Officer with its responses to all comments and concerns voiced to date regarding GRT’s CZ permit application. This TRM will also be utilized in preparing the Hearing Officer’s Report, which, as you know, will ultimately be sent to the Secretary for his consideration, and to aid him in making his final decision with regard to this pending application matter. This is the legal process for such Coastal Zone permitting matters, and there will no deviation from the same for this particular case.

As always, thank you for your participation in DNREC’s public hearing process.

Lisa A. Vest

Public Hearing Officer


 

[Nov 5, 2014]

TO:”Vest, Lisa A. (DNREC)” <Lisa.Vest@state.de.us>

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

Dear Lisa, Mr Cherry, and Mr. Coyle:

Thank you for your response and the documents provided. I agree, per your (3) below, that you cannot be expected to provide documents not “in the record.” However, I have not received any responses of any sort from Mr. Cherry or Mr. Coyle. This is concerning.

The materials you sent include a request to the applicants for an “Environmental Permit Application Background Statement.” However, there does not seem to be such a document in the record you have provided, or otherwise posted. Do you, or Mr. Cherry, or Mr. Coyle have such a document? If so, please provide it. The “background” of the applicants is obviously material under Delaware law.

Also, the statements from the League of Women Voters and the Sierra club seem incomplete, in that they don’t seem to have last pages/signature pages. Can you please check on this and provide any missing pages?

You say, in denying my request for public opportunity to respond to a DNREC “Technical Response Memorandum,” that “This is the legal process for such Coastal Zone permitting matters, and there will no deviation from the same for this particular case.” Can you please provide me with the citations or legal authority for this? I am not aware that the DNREC has a regulation or procedure manual or whatever for conduct of administrative proceedings/hearings. Is there case law that you consider applicable?

I note that the Sierra Club and the League of Women Voters have also requested an extension of the open record period–though not necessarily for the same reasons as Green Delaware’s. Have you responded to that request, and if so, in what way? I request any response document sent to the Sierra Club and/or the League.

Lastly, you say “The Coastal Zone permitting process is operated under particularly stringent deadlines, pursuant to current Delaware law, and therefore any further time extensions of the public comment period for this process is simply not possible in this matter.” I appears that there have been various versions of the application. Please advise me as to what the timeline is considered to be in this matter and what deadlines currently apply? (One receives the impression that deadlines as interpreted by the DNREC apply to the public but not to applicants….)

Yours very truly,

Alan Muller
Green Delaware


 

From: Alan Muller [mailto:amuller@dca.net]
Sent: Wednesday, November 05, 2014 3:52 PM
To: Vest, Lisa A. (DNREC)
Cc: Cherry, Philip J. (DNREC); Coyle, Kevin F. (DNREC); dorseyfiske@gmail.com; twhitehead1@comcast.net; mark@actua.com; Amy Roe
Subject: Re: Green Recovery Technologies CZA permit proceeding

Dear Lisa, Mr Cherry, and Mr. Coyle:

Thank you for your response and the documents provided.  I agree, per your (3) below, that you cannot be expected to provide documents not “in the record.”  However, I have not received any responses of any sort from Mr. Cherry or Mr. Coyle.  This is concerning.

The materials you sent include a request to the applicants for an “Environmental Permit Application Background Statement.”  However, there does not seem to be such a document in the record you have provided, or otherwise posted.  Do you, or Mr. Cherry, or Mr. Coyle have such a document?  If so, please provide it.  The “background” of the applicants is obviously material under Delaware law.

Also, the statements from the League of Women Voters and the Sierra club seem incomplete, in that they don’t seem to have last pages/signature pages.  Can you please check on this and provide any missing pages?

You say, in denying my request for public opportunity to respond to a DNREC “Technical Response Memorandum,” that “This is the legal process for such Coastal Zone permitting matters, and there will no deviation from the same for this particular case.”  Can you please provide me with the citations or legal authority for this?  I am not aware that the DNREC has a regulation or procedure manual or whatever for conduct of administrative proceedings/hearings.  Is there case law that you consider applicable?

I note that the Sierra Club and the League of Women Voters have also requested an extension of the open record period–though not necessarily for the same reasons as Green Delaware’s.  Have you responded to that request, and if so, in what way?  I request any response document sent to the Sierra Club and/or the League.

Lastly, you say “The Coastal Zone permitting process is operated under particularly stringent deadlines, pursuant to current Delaware law, and therefore any further time extensions of the public comment period for this process is simply not possible in this matter.”  I appears that there have been various versions of the application.  Please advise me as to what the timeline is considered to be in this matter and what deadlines currently apply?  (One receives the impression that deadlines as interpreted by the DNREC apply to the public but not to applicants….)

Yours very truly,

Alan Muller
Green Delaware


Thank you for the responses:

At 06:58 PM 11/6/2014 +0000, Coyle, Kevin F. (DNREC) wrote:

In response to your requests for information, we offer the following:

1)      According to an e-mail from Lisa Vest, DNREC Hearing Officer, to you, dated November 5, 2014, a Technical Response Memorandum (TRM) will be prepared and submitted to the Hearing Officer for her use in preparing the Hearing Officer�s Report.  The TRM will not be prepared until all comments are received and, thus, you will not have an opportunity to respond �on the record� because the record will have closed.

This is what we are objecting to.

2)      The exhibits have been posted at http://www.dnrec.delaware.gov/Admin/CZA/Lists/Coastal%20Zone%20Act%20Application%20Status/DispForm.aspx?ID=23&Source=http%3A%2F%2Fwww%2Ednrec%2Edelaware%2Egov%2FAdmin%2FCZA%2FPages%2Fdefault%2Easpx&ContentTypeId=0x010066B6213F5235E04DA047795CEAE390CD.
3)      According to DNREC�s Policies and Procedures Regarding FOIA Requests (Delaware Administrative Code, Title 8, Public Information), we have 15 business days to respond to your FOIA Request, dated November 3, 2014, which we are working on currently.

4)      According to an e-mail from Lisa Vest, DNREC Hearing Officer, to you, dated November 5, 2014, and reiterated in an e-mail to you dated November 6, 2014, the record closes on November 14, 2014.

Yes, but if you do not provide the information until after the record is closed, the objective of meaningful public participation is obstructed.  That is why we are asking for an amended procedural schedule that allows for public responses based on the data requested and the Departments Technical Response Memorandum.

5)      To the best of our (Kevin Coyle and Phil Cherry) knowledge, a situation involving prior construction has never come up before. The Coastal Zone Act provides for a fine of $50,000 per day for a violation of the Act.  In cases of non-compliance with the Act or the Regulations the Secretary may also revoke a CZA permit; however, in this case, a permit has not yet been issued.

I, also, am not aware of such a situation, or at least such a flagrant situation, as the construction of an entire new facility in the Coastal Zone without a permit.  It does seem to me, though, that if the DNREC does not respond firmly and strongly to this situation the potential exists for permitting to become a farce.  Yes, the applicant may say that she has knowingly constructed the facility at her own risk (of not receiving a permit).  But in a practical sense the applicant is likely to argue that her investment in the facility would be lost and this would be a “taking,” etc.  Further, as I have said before, it is impossible to avoid the perception that the applicant must have received informal assurances that issuance of a Coastal Zone permit was a foregone conclusion.

6)      Under the CZ Act and Regulations, we are charged with evaluating the completeness of the permit application in light of the Six Factors (environmental impact, economic effect, aesthetics, number and type of supporting facilities required, effect on neighboring land uses, and compliance with county and municipal comprehensive plans).  Furthermore, GRT went through a Regulatory Advisory Service (RAS) meeting where they were informed about additional regulations and permit requirements that would apply to this project.

In our opinion the Regulations are in many respects not consistent with the plain language and stated purposes of the Act.  A key concern here is whether the Department has carried out an independent evaluation of the Six Factors, or has relied overmuch on the representations of the applicant.

Yours very truly,

Alan Muller
Green Delaware

Kevin F. Coyle, AICP CEP
Principal Planner

+ DNREC, Division of Energy and Climate
1203 College Park Drive, Suite 101
Dover, DE  19904
‘ 302.739.9071
7  302.739.1840
* Kevin.Coyle@state.de.us

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