CIB board softens recommendation on landfill

The Board of Directors for the Center for Inland Bays bypassed a resolution put forth by the Citizens Advisory Committee (CAC) on Tuesday, Sept. 23, and instead passed a different motion, with a vote of 3-2.

The CAC approved a resolution on Sept. 15 to appeal the Secretary of the Department of Natural Resources (DNREC’s) recent Order No. 2008-A-0037, regarding permitting of a Phase II coal-ash landfill at the NRG plant in Millsboro.

Citizens were united in their disapproval of a Phase II landfill this past June at a DNREC hearing. NRG applied for the Phase II application because the present Phase I landfill, which began operations under Delmarva Power and Light (DP&L) in 1980, will reach its design capacity within one year.

In 2007, 139,372 tons of coal ash was disposed in the Phase I landfill. The Phase II landfill NRG applied for would be placed adjacent to the existing Phase I landfill. Despite citizen opposition, the permit was approved by DNREC on Sept. 4.

The CAC resolution proposed that the “Phase II coal ash landfill permit be issued for no more than 5 years and be subject to the following conditions: DNREC require NRG to remove the Delmarva landfill, or remediate the landfill using a scientifically and technologically better procedure, and transport all coal ash out of the inland bays; DNREC require NRG to promptly begin the removal and transport out of the watershed all of the coal ash from the Phase I landfill; NRG be prohibited from bringing coal ash from their Dover plant to any of the Indian River Generation Station landfills.”

The CAC also recommended that the board adopt the following as a long-term solution:

“Should there be a continued need for IRGS in the future, NRG must begin planning an application process to convert the entire IRGS plant to the most technologically advanced and cleanest process for energy production. This process should be well under way prior to the expiration of the recommended 5-year Phase II permit period.”

After CIB board member Dr. Bill McGowan commended both the CAC and the scientists at DNREC, he noted that the resolution, as proposed, was not consistent with operational strategies of other national estuary programs and the board’s responsibility for monitoring the effectiveness of all actions. He read a motion that requests DNREC coordinate with the center to determine feasibility of the resolution, without putting them under a specific timeframe.

“We need to look at this on a long-term basis,” he said.

The specific motion read “Under Section 320 of the Clean Water Act (amended 1987) – the enabling legislation for the National Estuary Program – more specifically, SEC. 320 (a)(2)(B)(6), the Management Conference of a National Estuary Program (a.k.a. Board of Directors) has responsibility for monitoring the effectiveness of actions taken pursuant to adoption of its Comprehensive Conservation and Management Plan (CCMP). As such, the Board of Directors has determined that Secretary’s Order No. 2008-A-0037 appears to be inconsistent with the goals and objectives of the state-adopted Inland Bays CCMP. Furthermore, the Board requests that the Department of Natural Resources & Environmental Control coordinate with CIB a long-term approach for addressing the impacts from fly-ash landfills at Indian River Generating Station and determine the feasibility of possible remediation or removal of the fly ash deposited there.”

“So does that mean we are no longer putting them under a timeframe?” asked board member and Sussex County administrator David Baker, to which he was answered, “Yes.”

According to the Center for Inland Bays’ Web site, “The National Estuary Program, established under the Clean Water Act and administered by the U.S. Environmental Protection Agency, provided approximately $2 million to study the Inland Bays, characterize and set priorities for addressing the environmental problems in the watershed, and develop a Comprehensive Conservation and Management Plan (CCMP) to protect and restore the bays.

“The underlying theme of the program is that a collaborative, consensus-building effort involving citizens; private interests; organized groups; and federal, state, and local governments is essential to the successful development and implementation of the CCMP. The CCMP, adopted in 1995, addresses action plans in five targeted areas: education and outreach ; agricultural sources; industrial, municipal and septic system sources; land use and habitat protection.”

CAC Chairman Ron Wuslich asked that the CIB encourage DNREC to encourage a signing of CCMP goals and objectives into regulations pertaining to solid waste management. After putting a motion on the floor to see if that could be added to McGowan’s statement, he did not receive a second. The board then voted yes, 3-2, on McGowan’s read motion, with Scientific and Technical Advisory Committee member and DNREC employee Sergio Huerta abstaining.

Board Vice-Chair Pat Campbell-White, Treasurer McGowan (the appointee of the Speaker of the Delaware House of Representatives), the Sussex Conservation District and Sussex County Administrator David Baker all voted in favor. Dewey Beach Mayor Dell Tush, representing the Sussex County Association of Towns, Citizens Advisory Committee Secretary Ron Wuslich and the abstention from Huerta were considered “no” votes, and Chairman of the Board Richard Eakle voted in favor, to break the tie and carry the motion.

Board members Secretary Michael T. Scuse of the Delaware Department of Agriculture, Secretary John A. Hughes of Department of Natural Resources and Environmental Control and Ed Ambrogio of the Environmental Protection Agency (ex-officio) were not present.

After the meeting was officially adjourned, discussion focused on keeping the lines of communication between the CIB and DNREC open.

Harry Haon of Fenwick Island asked that a written memorandum of understanding be documented between the CIB and DNREC.

“It would be a shame to have all these good ideas lost,” he said. He spoke of the “very fruitful” meeting between CAC members and representatives from DNREC on Monday night but noted that “nothing was in writing.”

Eakle countered that that understanding already exists.

“We have that,” he said. “With the CCMP.” He did state that they could put it before the board but was not sure what more they could do, as DNREC had already signed onto the CCMP. “[The language] ‘where feasible’ gives them their out. I don’t know how much more binding it could be.”

CAC Vice-Chair Carol Bason added that it was the DNREC representatives who had suggested a “memorandum of understanding” to further the relationship, after being asked by CAC, “How do we follow up with you?”

Huerta offered that DNREC is responsible for an entire state — more than just the inland bays — and often has to make difficult decisions.

“You have to prioritize,” he said. “And put things into perspective. People are trying to do the best they can with what they have.”

After Bob Gallager asked what the Center does to monitor air quality, Wuslich mentioned that the power plant is the biggest polluter in the state, in terms of air and water pollution, and he said that the DNREC officials stated on Monday night that they were stretched thin with resources and that no water sample at been taken at the Burton’s Island old ash site in 29 years.

Wuslich asked about a legal justification of Delaware Code, Title 7 referenced in their original resolution. “Could the Center ask Secretary Hughes if the permit is in violation? Is this law not pertinent to Phase II, or is it?”

At the permit hearing in June, resident John Austin, who requested the hearing, referenced the code, as well, after requesting that coal fly ash, with its mercury and arsenic compounds, be designated a hazardous waste.

“To comply with the Delaware Code Title 7, Section 1300, Waste Management, hazardous waste disposal can only be located in areas where air and water degradation is minimal, not near the Indian River Bay,” he said. He went on to say that, because of the proximity of Island Creek and Indian River, “We could lose everything if there was a catastrophic flood or rainfall.” He said a landfill should not be near a flood zone, and that the groundwater should be 5 feet below the bottom liner of the landfill but that underlying groundwater at the proposed site is only 3 to 4 feet below, which would not meet the standard.

“The code states that no landfill should be placed in an environmentally sensitive area. It’s entirely within the Coastal Zone Act. If they aren’t referring to land within the Coastal Zone Act, then I would think those words have no meaning,” he said back in June.

Eakle ended the discussion by reminding everyone of the relationships between the Center for Inland Bays, the state, the county and DNREC.

“In the future, I’d ask that CAC please make sure that the resolution is something we can do. Whether DNREC is right or wrong, we still have a partnership.”

“Was the appeal the issue?” asked Bason.

“Yes,” answered Eakle. “We have a partnerhsip. Officially appealing it is not the way the board feels we should go. When you come to us, give us something we can do.”

After the vote, Wuslich thanked all involved “for the system working as well as it has or could.” He noted that the CAC has 24 voting members and, for the first time, has a waiting list. “The CAC is not willing to just give up,” he said. “The complexion of the CAC is changing, and we are a well-informed body of people. We have an educated cross-section of people that can put two and two together.”

The Delaware Center for the Inland Bays was established as a nonprofit organization in 1994 under the auspices of the Inland Bays Watershed Enhancement Act (Title 7, Chapter 76). Their mission is to promote the wise use and enhancement of the Inland Bays and their watersheds. The purpose of the CAC is to proactively make policy recommendations to the CIB on issues related to protection of the Inland Bays. For more information, visit