Appeal filed over Pinnacle Way remediation plan

Date Published: 
January 24, 2014

Citizens’ group Protecting Our Indian River (POIR) and the Inland Bays Foundation Inc. have submitted an appeal to the Delaware Environmental Appeals Board after the Delaware Department of Natural Resource and Environmental Control’s (DNREC’s) recent approval of a remediation plan for the former Vlasic pickle plant near Millsboro.

“We are seeking to reverse the order,” said Cindy Wilton, a founding member of POIR. “The remediation plan that DNREC proposed misses the mark on so many levels that they simply need to go back to the drawing board and make solid, fair, realistic plans for reviving that site.”

DNREC Secretary Collin O’Mara issued a Secretary’s Order issued a Secretary’s Order on Dec. 24, approving the final plan of remedial action for the Pinnacle Way site, a designated Brownfields site — one where redevelopment can be complicated by potential presence of a hazardous substance, pollutant or contaminant.

“The remedial action in long-term ground-water monitoring is consistent with some of the public’s comments, which sought more sampling of the site’s groundwater and even the possibility of off-site sampling as part of the approved groundwater plan,” wrote O’Mara in the order. “The results of the additional ongoing groundwater monitoring will be made available to the public and, if higher levels of contaminants are detected, additional remediation may be required.”

In their Jan. 16 appeal, the appellants state that members of POIR are at risk of and are currently being adversely impacted by hazardous contaminants at the Pinnacle Way location or those that may be migrating from the site.

“They draw drinking water from wells very near the site and/or are or can be otherwise exposed to the hazardous substances in the soils and groundwater at or emanating from the site,” stated the appeal, submitted by Kenneth Kristl of Widener Environmental & Natural Resources Law Clinic, on behalf of the appellants.

The appeal goes on to state that, because both Delaware’s Hazardous Substance Cleanup Act (HSCA) and the Brownfields Agreement — under which the remedial action will take place — contemplate successful completion of the plan, it will result in limited liability for the future owner of the site.

The Brownfields Development Program encourages the cleanup and redevelopment of vacant, abandoned or underutilized properties that may be contaminated.

Located at 29984 Pinnacle Way, the 107.3-acre former pickling factory could be converted into a chicken processing plant, as Korean company Allen Harim Foods entered into a Brownfields development agreement in August, 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 own processing plant.

The Jan. 16 appeal argues that the remediation plan violates requirements of the HSCA, and “as such, the Order is arbitrary, capricious and otherwise contrary to law, and should therefore have not been issued in its current form.”

According to the appeal, the remedial plan was flawed due to a failure to characterize adequately the hazardous substances on or emanating from the site, a failure to evaluate properly the risks created by the hazardous substances on or emanating from the site, and a failure to impose a remedy that reduces and/or eliminates the impacts and risks of the hazardous substances on or emanating from the site.

During the Brownfields investigation, through 21 groundwater samples, DNREC found that there were exceedances of the Delaware Drinking Water Standard. PCE and TCE were above the standard of 1 part per billion (ppb) at one monitoring well, located centrally within the site.

The approved plan, as recommended by DNREC’s Division of Waste and Hazardous Substances, Site Investigation & Remediation Section (SIRS), will include a long-term groundwater monitoring plan be developed and implemented once approved by the section.

During a public hearing in December, DNREC officials said they know the contamination is localized because the levels of those contaminants are below standards at surrounding sampling sites.

In deep soil sampling, one location had iron exceeding DNREC’s screening values, but it was deemed to not present a risk and to not require remedial action. Chloroform was also found to exceed standards of soil vapor samples; however, officials said that, through further study, it was determined no action would be necessary on that issue.

The Brownfields investigation also showed exceedances of aluminum, arsenic, barium, cadmium and cobalt but did not exceed the Delaware Drinking Water Standard.

However, lead exceeded the standard of 15 ppb, by 2.3 ppb.

Nitrates were detected in several monitoring and drinking-water wells onsite, at levels above the Delaware Drinking Water Standard of 10 ppb, at two monitoring wells and one public well.

Many who opposed the remediation plan testified against it, including Inland Bays Foundation’s science coordinator John Austin, a 33-year veteran of the U.S. Environmental Protection Agency, stating that DNREC’s proposed monitoring plan is “inadequate.”

“This was a missed opportunity by DNREC to do things the right way,” said Maria Payan of the Socially Responsible Agricultural Project. “Community health and environmental stability were back-burnered in favor of a quick fix that was no fix at all. This process should start again, and this time the citizens of Sussex County need to be respected and protected by its government agencies.”

The appeal estimated that they would call up to 16 witnesses and estimates that the testimony will extend to up to 12 hours, “exclusive of cross-examination or re-direct, if any.”

“The Order should be revered or remanded with instructions to DNREC to comply with GSCA and its implementing regulations.”

The appeal is expected to be heard before the Environmental Appeals Board, which consists of seven Delaware residents, appointed by the governor, with each county having at least two representative members. As of Coastal Point’s Wednesday deadline, no hearing date had been scheduled.

To read O’Mara’s Secretary’s Order, visit http://goo.gl/1TO5ax. To view DNREC’s proposed plan of remedial action, visit http://www.dnrec.delaware.gov/dwhs/SIRB/Lists/SIRB%20Plans%20%20Proposed..., or go to http://www.dnrec.delaware.gov/dwhs/SIRB/Pages/SIRBPlans.aspx, select Dagsboro from the City drop-down menu and select DE-1555, 29984 Pinnacle Way Site. To view Austin’s presentations, visit www.inlandbaysfoundation.org.