Civil rights complaint against DNREC, Sussex County targets Seaford-area gas plant approval
After years of protest against a planned expansion of a Seaford-area composting facility, five environmental and civil groups filed a civil rights complaint with the Environmental Protection Agency charging that the state and county approval process failed to properly inform residents.
Since taking over Perdue's pelletizing plant in 2020, Maryland-based energy company Bioenergy Devco has been asking for approval to bring in 250,000 tons of poultry waste from three different states to convert it to a form of natural gas called biogas.
Environmental groups have argued that expanding the facility could increase air pollution, groundwater contamination and lead to safety risks in transporting the produced natural gas through nearby communities. Bioenergy Devco has repeatedly insisted upon the safety of the process.
However, this particular complaint is centered on the lack of meaningful, accessible outreach between DNREC and the Sussex County government and the surrounding communities, whose residents are mostly low-income, Spanish or Haitian-Creole speakers who work in the poultry processing industry.
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"This is a community that has a very large population of immigrants," said Mike Breckner of the ACLU's Delaware branch, a co-signer on the civil complaint. "Federal law says that when you have a community that has racial minorities, people who speak English as a second language or people that have already been disproportionately impacted by environmental factors, the government has to go above and beyond to make sure those communities are consulted and engaged."
The complaint, filed on Dec. 22, is now in the hands of the U.S Environmental Protection Agency, which will decide whether or not they will conduct further investigation into the alleged discriminatory practices.
What's in the complaint to the EPA?
The civil rights complaint alleges that DNREC and Sussex County violated Title VI of the Civil Rights Act by failing to timely disseminate information about the proposed plant in the primary languages of nearby residents and not properly engaging with local residents.
The facility, located at 28332 Enviro Way near Seaford, is within 3 miles of two mobile home communities where most residents speak Spanish or Haitian-Creole as their primary languages and lack broadband internet access. The nonprofit organization Food and Water Watch canvassed over 200 homes near the site and claimed that many residents had not been notified of the proposed project.
The organizations that filed the environmental justice complaint, Socially Responsible Agriculture Project and its partners Sussex Health and Environmental Network, ACLU-DE, Delaware Poor People’s Campaign and Delaware's branch of the NAACP want the EPA to force DNREC and Sussex County to restart the permitting process for the project and include meaningful community involvement.
Chip Guy, communications director for Sussex County government, and Michael Globetti, media relations manager with DNREC, declined to comment on the complaint while it is under litigation.
Jessica Wheeler, media contact for BioEnergy Devco, sent the following email statement on behalf of the company.
"The Bioenergy Devco Innovation Center expansion project has received the support of multiple independent environmental protection organizations, legislators, and community members. While Bioenergy Devco is not a party to this complaint, we take our relationship with the community seriously. We are committed to continuing to educate our community about the facility and encourage residents to come to one of our open-house events."
What is the Bioenergy Devco Innovation Center?
BioEnergy Devco has been running its composting operation at its Innovation Center at the Seaford-area site since 2020 when Perdue sold its former Agricycle plant for $10. Since taking over the site, the company has submitted its proposal to expand the Innovation Center's operations.
The project calls for:
Trucking in 250,000 tons per year of poultry waste from Delaware, Maryland and Virginia to the site
Constructing a methane gas production and gas refinery facility
Increasing the amount of material composted at the site from 30,000 to 56,000 tons per year
Trucking out the manufactured natural gas to pipelines
Trucking out 60,000 gallons of wastewater daily to a municipal wastewater treatment facility
Trucking routes for transporting the waste, natural gas and wastewater would be through the surrounding residential neighborhoods. The project is estimated to create 20 jobs.
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How do they make natural gas from chicken waste?
Bioenergy Devco proposes to use the facility to conduct a process known as anaerobic digestion, which converts organic waste such as poultry litter into biogas, a combination of methane and carbon dioxide.
Poultry waste is loaded in large tanks and deprived of oxygen. As the microorganisms break down, they produce carbon dioxide and methane that is captured and converted to biogas that can be used as a fuel source. Also left over from the process is a nutrient-rich compost that can be used to fertilize soil.
The company has already signed a 20-year contract with Perdue Farms to provide waste for the project and has stated its intention to work with Chesapeake Utilities to connect the fuel to local pipelines. Bioenergy Devco has also publicly stated its intention of supplying the compost to local farmers to improve soil health, although no official partnerships have been developed.
The pros and cons of biogas
Anaerobic digestion has been hailed as a "greener" method of energy production, but has also sparked disagreement from environmental groups.
The process creates a consistent supply of natural gas without overcrowding landfills with the organic waste. Any methane created from the process can be trapped and combusted for heating or electricity, which does have the potential to minimize greenhouse gas emissions. The byproduct of the process can also be used as compost.
On a larger scale, this project may represent the future of American energy policy. The national push toward investments in biogas projects such as Bioenergy Devco's anaerobic digesters has drawn much more attention in recent months.
The practice's main draw is its methane capture. In anaerobic digestion, the methane that would have been released into the atmosphere is instead converted into natural gas and funneled through existing pipelines. The Biden administration supports these types of projects.
The Inflation Reduction Act also includes tax credits of up to 30% toward biogas facilities built before 2025.
Despite the potential to reduce emissions, anaerobic digestion still creates air pollutants and is heavily reliant on continuous truck transportation, which also emits pollutants.
A letter written to Gov. John Carney from 35 environmental groups in 2021 calls the project a "green-washed nightmare." The letter pointed out concerns with the expansion of Delaware's factory farming system, the environmental injustice aspects of the site's location and claimed that burning the biogas has the potential to cancel out any emission reductions.
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‘This plan does not smell right.’ Residents not informed, complaint charges
Plans have been in motion for this project since Bioenergy Devco obtained the property in 2020. In February 2021, Sussex County Planning and Zoning board held a public hearing where they made the formal recommendation that Bioenergy Devco's proposal be approved. The project also had no objections from the Delaware Department of Transportation and an approval from the state fire marshal.
The county board received over 275 letters from community members and organizations in opposition. A few months later, after a recommendation from the county's Industrial Revenue Bond Committee, Sussex County Council unanimously approved $60 million in tax-exempt bonds for Bioenergy Devco.
“Nobody knew about it, nobody," said Maria Payan, a community activist who canvassed nearby residents. "There's too many games being played, everybody in Sussex County is aware of this."
The complaint claims that an assessment of the community and plant's potential risks was never performed and DNREC and Sussex County only met with a handful of residents.
The complaint also states that many of the documents and presentations relating to Bioenergy Devco's project were posted in English only. Documents explaining the company's proposals and various applications have since been posted on the websites of Bioenergy Devco and DNREC, translated into both Spanish and Haitian-Creole.
Last October a public hearing was held in relation to the company's plans. Over 150 people attended, a majority of whom speaking in opposition to the proposal.
"I believe one of the reasons they wish to locate this facility in western Sussex County is the simple reason of socioeconomics," Al Liebeskind of Sussex County said at an October public hearing attended by 150 residents. "Governor Carney, I ask for the sake of the current residents of this state, please do not enter any verbal promises or do not sign any agreement for our children and our grandchildren's future. This plan does not smell right."
However, some speakers were more optimistic about the project's potential in the area.
"For the first time, [Bioenergy Devco] is poised to deliver to our state a state-of-the-art solution to enhance our farms, water quality and climate change mitigation in air and soil," said Chris Brosch of the Delaware Nutrient Management Commission at the Department of Agriculture. "The Delaware Department of Agriculture strongly endorses the permit applications and hopes for an expeditious permitting process."
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What comes next?
The public record from October's hearing is set to be reviewed by DNREC Secretary Shawn Garvin, who will make the final determination about the project. Bioenergy Devco still needs to obtain five permits from DNREC's divisions of Air Quality, Waste and Hazardous Substances, and Water.
The EPA has about six months to decide what measures, if any, to take against DNREC and Sussex County, according to Elizabeth Holmes, senior counsel for the national Socially Responsible Agriculture Project. Although the groups made over a dozen suggestions in their complaint for how the federal organization can go about their investigation, Holmes explained that the EPA has "a lot of discretion" as to how they handle these kinds of complaints.
"Communities and families are going to remember this," Breckner said. "If they feel like they were not given the full story and they weren't treated respectfully, that kind of mistrust and that lack of communication can just breed more distrust in the future."
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Contact Molly McVety at mmcvety@delawareonline.com.
This article originally appeared on Delaware News Journal: Environmental justice complaint filed against DNREC and Sussex County
