Sussex County grassroots groups Protecting Our Indian River (POIR) and Inland Bays Foundation Inc. are currently waiting for a decision by Superior Court Judge Richard F. Stokes regarding their appeal of a remediation plan approved by the Delaware Department of Environmental Control’s (DNREC) Environmental Appeals Board.
The remediation plan for the 107.3-acre former pickling facility to be converted into a poultry processing plant by Allen Harim Foods is part of the Delaware Brownfield Development Program “encourages the cleanup and redevelopment of vacant, abandoned or underutilized properties which may be contaminated.”
On April 29, attorney Kenneth Kristl of Widener Environmental and Natural Resources Law Clinic, representing POIR and the Inland Bays Foundation argued that the remediation plan is not enough.
He stated that during the hearings prior to the plan’s approval, there was expert testimony that showed there were contaminants, including nitrates and cobalt, found at the site were seeping into the groundwater and moving offsite, affecting neighboring properties.
He stated that while there was testimony stating that the cobalt levels were likely from septic waste there was “no evidence in the record to support that finding.”
The site is located at 29984 Pinnacle Way, just outside of Millsboro. In 2013, Harim entered into a Brownfield development agreement, promising to clean up hazardous contaminants left from Vlasic’s nearly 40 years of operation there, before spending an estimated $100 million to redevelop the site for its processing plant.
Kristl said there should be monitoring outside of the property in order to determine if the contamination is moving off-site.
“All my clients want to do is find out if there’s a connection,” said Kristl, noting that the planned monitoring system for the site is “inadequate.”
Attorney Jeremy Homer, who represented Allen Harim at the hearing stated that levels of contaminants such as nitrates and cobalt on the site were found to be below levels of concentration harmful to human heath.
“That’s the key to the whole case,” he said. Adding, “How far do you have to look to say you’ve adequately looked for it?”
Homer said the burden of proof should not be on his client or DNREC.
“That just doesn’t make sense,” he said. “I find this argument is very far fetched in terms of what the Court’s being asked to do.”
DNREC attorney Keith Brady of the Delaware Department of Justice said Kristl suggested that DNREC was in violation of the law and the departments own regulations.
“We believe that’s a mischaracterization of what DNREC actually did,” saying that DNREC actually extended its investigation.
“Our position is clear—DNREC wants the public to know it takes its job seriously.”
Following the hearing, Maria Payan of the Socially Responsible Agricultural Project, who has been helping the two groups appealing the plan, said, “I thought it went very well. I think that it was clearly pointed out that their expert and DNREC did no testing off-site,” she said. “We need data not theories in order to prove a set of facts.”
Along with Stokes’ decision regarding the Environmental Appeals Board’s decision, the groups are awaiting his decision regarding their appeal of the Sussex County Board of Adjustment special-use exception that allows the chicken processing plant to move forward at the site. Arguments for that appeal were heard in October 2014. There was no timeframe given as to when a decision for either appeal would be made. Following Stokes’ opinion, both parties could appeal to the Delaware Supreme Court.