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MILLSBORO – Two state permits issued last week to Mountaire Farms of Delaware encompass pollution control improvements at Mountaire’s Millsboro poultry processing plant, Delaware’s Department of Natural Resources and Environmental Control announced Jan. 15.
Facility upgrades will allow Mountaire to address regulatory compliance issues and wastewater violations that led to the September 2017 wastewater treatment plant failure. The permits will also allow Mountaire to move forward with pollution reduction improvements at the plant, according to DNREC.
Mountaire is required to construct and operate the upgraded wastewater treatment facility as part of a May 2020 agreement with DNREC. In addition, DNREC has requested that the U.S. District Court for the District of Delaware enter the agreement as a consent decree. The U.S. District Court’s decision is pending.
Together, the permits authorize Mountaire to construct significant upgrades to its wastewater treatment facility and to put wastewater treatment improvements into operation when construction is complete.
The On-Site Wastewater Treatment and Disposal Construction permit issued by DNREC authorizes Mountaire to make significant upgrades to the existing wastewater treatment facility at the Millsboro poultry processing complex.
My name is Keith Steck. Thank you for the opportunity to comment on this case. I am submitting written comments for the record.
Let me begin by making some general comments about the documents provided as part of the paperless packet regarding this case. In particular, why is the application itself not part of the packet? Many people--such as those who work, have mobility problems, are ill or traveling--cannot go to the P&Z Office during regular business hours to examine the full range of documents. Something as fundamental as any application to this Commission should be included in the online packet. It is unclear what other key documents are not available to the public through the online packet.
That said, based on the documents that are available online, this whole project is not ready for serious consideration by the Commission, let alone County Council as scheduled for next month. If a decision is to be made based on the information provided to the public for this hearing, then the Commission should deny the request.
Below is my analysis and justification for requesting this entire project be put on hold until additional information is obtained, research and analysis is done, and the revised results are made available to the public.
I HAVE SERIOUS QUESTIONS ABOUT PROPER NOTIFICATION OF HEARING
First, it’s not clear from the public hearing notice that the southeastern corner of the southern portion of parcel 234.28.00-3.00 is at the intersection of Donald Drive and William Street Road. This is important because the PROPERTIES ALONG THE SOUTHERN BOUNDARY OF THIS PARCEL DO NOT APPEAR TO HAVE BEEN INCLUDED IN “MAILING LIST EXHIBIT MAP” FROM THE PLANNING & ZONING COMMISSION--SEE PAGE 16 OF THE PAPERLESS PACKET FOR THE COMMISSION. SO, IT LOOKS LIKE NONE OF THE HOMES IN THE HITCHENS LANE AND ED MORRIS LANE AREAS AND THOSE ALONG WILLIAM STREET ROAD WERE INCLUDED IN THE NOTIFICATION AREA. This begs the question:
Were these homeowners notified by mail about the proposal?
Further, I drove down by this area and only saw two yellow public notice signs for this hearing: (1) at the intersection of Maryland Camp Road and Townsend Road and (2) the intersection of Maryland Camp Road and William Street Road. There were no signs along Mount Joy Road, even though there are about a dozen homes on the eastern edge of the affected properties highlighted on the Mailing List Exhibit Map. Oddly, there are about 25 homes highlighted on the map in the Hillcrest Acres development off of Cordrey Road and Hillcrest Drive.
INCOMPLETE ANALYSIS OF THE REQUEST
MORE CONCERNING ARE FLAWS AND THE LIMITED ANALYSIS IN THE P&Z INFORMATION SHEET AND OCT. 3 PLANNING & ZONING MEMORANDUM DONE FOR THIS CONDITIONAL USE REQUEST.
Information Sheet
The information sheet for this hearing, for example, misidentifies the councilmanic district and a substantially lower number of acres for this project--see p. 14 of the paperless packet.
THE SHEET SHOWS THIS PROJECT IN COUNCILMAN BURTON’S DISTRICT, YET THE PROPERTY INFORMATION SHEETS SHOW THE COUNCILMANIC DISTRICTS AS RIELEY AND HUDSON FOR THE THREE PARCELS.
OF MORE IMPORTANT CONCERN IS THE ERRONEOUS SIZE STATED ON BOTH THE INFORMATION SHEET AND THE SEPT. 16, 2019, “C/U & C/Z COMMENTS” FROM THE COUNTY’S ENGINEERING DEPARTMENT’S UTILITY PLANNING DIVISION. THESE DOCUMENTS STATE THE SIZE OF THE PROJECT IS 203.34 ACRES, WHEN IN REALITY THE FULL PROJECT SIZE IS OVER 350 ACRES, according to the public notice. The erroneously stated size is for parcel 1 (234-28.00-1.00) only, even though all three parcels are clearly listed on both documents.
THIS IS A SERIOUS DISCREPANCY, UNDERREPORTING THE SIZE BY 43%! HOW DOES SUCH A BASIC FACT GET SCREWED UP? Worse, it undermines the public’s confidence in other P&Z projects and documentation. It raises serious issues about
● What other P&Z Office documents have this error?
● What other county and state agency documents have this error?
● What decisions are impacted by this huge error?
● Does this size discrepancy impact critical decisions that are determined by project acreage/size?
THIS ENTIRE PROJECT SHOULD BE PUT ON HOLD UNTIL
1) ALL DOCUMENTS HAVE BEEN REVIEWED TO ENSURE THEY ARE ACCURATE AND
2) ALL DECISIONS HAVE BEEN REVIEWED TO ENSURE THEY WERE MADE USING THE 350+ ACREAGE FIGURE.
OCT. 3, 2019 PLANNING & ZONING MEMORANDUM
Equally problematic is the P&Z memo to Commission members, the assistant county attorney, and the applicant--see p. 18 of the paperless packet.
IT DOES NOT PROVIDE A FULL CONTEXT REGARDING THIS PROJECT NOR DOES IT PROVIDE KEY INFORMATION AND ANALYSIS.
While the document does note that it “is subject to comments and information that may be presented during the public hearing” the public is skeptical that their comments are given serious and thoughtful consideration and weight based on other matters brought before this Commission and the Board of Adjustment.
BASIC INFORMATION IS MISSING. FOR EXAMPLE, HOW LONG IS THIS SITE GOING TO EXIST?
Is this a temporary site until Mountaire gets its act together regarding its plans for dealing with existing sludge and wastewater problems ... or this going to be a permanent dumping/spray site? Is Mountaire going to use this location until it chokes the life out of the site and contaminates it to the point that it is unusable and runoff poisons the aquifer and drinking water, and continues to discharge into Swan Creek and Indian River?
OTHER INFORMATION NOT INCLUDED IN THIS BACKGROUND MEMO:
● THE SOURCE OF THE SLUDGE AND THE TYPE OF SLUDGE ARE NOT DEFINED AND/OR DESCRIBED. Where is this coming from--just the facility on Rte 24 or Mountaire’s other operations. Is it just from Delaware facilities or outside the state? To what extent is the sludge being treated? Is this raw, untreated sludge?
● THERE IS NO DESCRIPTION OF THE SOURCE AND TYPE OF WASTEWATER TO BE SPRAYED. Where is the wastewater coming from--the Mountaire plant on Rte 24 or someplace else? Also, WHAT’S IN THE WASTEWATER THAT’S GOING TO BE SPRAYED AND IS IT RAW, UNTREATED WASTEWATER? OFTEN WASTEWATER CONSISTS OF PROCESS WASTEWATER USED IN SLAUGHTERING, CLEANING, AND PACKAGING CHICKENS, BUT IT OFTEN ALSO INCLUDES SANITARY WASTEWATER--IN PLAIN ENGLISH THIS MEANS SEWAGE AND WASTEWATER USED IN CLEANING. Is this wastewater being treated and if so to what extent is it being treated?
● HOW ARE THE SLUDGE AND WASTEWATER GETTING TO THE PROPOSED SITE? THE MEMO DOES NOT DISCUSS THIS.
The public has a right to know and you have a responsibility to understand what that entails. Right now, the public has to assume it’s being hauled by truck, given the DelDOT traffic review that’s included in the online package--see pages 20 and 21. But THAT REVIEW DOES IS SIMPLY COMMENT ON TRAFFIC VOLUME; IT DOES NOT DISCUSS THE ADDED VOLUME OF PARTICULATES AND OTHER POLLUTANTS THAT WILL BE GOING INTO THE AIR AND ONTO THE GROUND. Why does the DelDOT analysis not mention whether Mountaire and DelDOT have existing plans for addressing accidents involving trucks or do they need to come up with such plans? MORE SIGNIFICANT AND COMPLICATED ARE THE HAULING PERMITS MOUNTAIRE WILL HAVE TO OBTAIN OR HAVE MODIFIED; THE DELDOT DOCUMENT DOESN’T EVEN MENTION THAT MOUNTAIRE WILL BE REQUIRED TO HAULING PERMITS FOR SLUDGE AND WASTEWATER. DNREC and other agencies have different permitting requirements from hauling different types of waste. For example, DNREC does not allow sanitary wastewater to be hauled by the same trucks hauling process wastewater. And what about about Mountaire’s truck safety record? HAVE DELDOT UPDATE ITS ANALYSIS.
MOREOVER, THERE ARE NO ANALYSES OR INFORMATION IN THE OCT. 3 MEMO REGARDING
● THE OPINION FROM THE SUSSEX CONSERVATION DISTRICT ABOUT WHAT IMPACT THIS PROJECT WILL HAVE ON THE PROPOSED SITE AND SURROUNDING AREAS. GIVEN THE VERY NATURE OF THIS PROJECT, WHY DOES PLANNING AND ZONING NOT INCLUDE SUCH INFORMATION IN THIS PACKET?
You get an analysis for many other projects, why not this one? It is simple common sense that the Commission have comments from the Conservation District before making a decision. To wait until after you decide would be like trying to put the genie back in the bottle--it makes no sense, especially given the environmental and other damage done regarding past Commission decisions; just look at the mess with the Blessings Blends Composting by Prime Hook.
● THE IMPACT THIS PROJECT WILL HAVE ON THE SURROUNDING COMMUNITIES?
Given that the surrounding area and its residents have already suffered from environmental harm, especially people of color, the poor, and the elderly, the Commission needs to pay particular attention to what impact this project will have on this area. Moreover, is the Commission aware that this entire project falls within the Nanticoke State Designated Tribal Statistical Area (see Census Bureau)? Do you want to continue burdening this area and its people disproportionately and limiting future economic development such as retail, medical, or office centers or other economic drivers? Seriously look at not just what is now but what will be in the future--look at the long-term economic and residential development plans under the County’s Updated Comprehensive Plan for the area. Don’t rely just on DelDOT’s traffic review but ask for it to include traffic projections for the next 20 years. DO NOT MAKE A DECISION THAT FURTHER ADVERSELY HARMS THIS AREA, WHICH HAS BEEN OVERBURDENED WITH INDUSTRIAL DEVELOPMENT. Why load more pollutants onto areas already environmentally overburdened area?
● THE ENVIRONMENTAL IMPACT THIS PROJECT WILL HAVE ON THE ADJOINING SWAN CREEK AND THE DOWNSTREAM WAPLES AND LONGWOOD PONDS, THE INDIAN RIVER, AND ULTIMATELY INTO THE INLAND BAYS.
GIVEN THE TREMENDOUS POLLUTION THE INDIAN RIVER AND INLAND BAYS SUFFER, MAJOR CONSIDERATION SHOULD BE GIVEN TO THE IMPACT THIS PROJECT WILL HAVE ON THE WATERWAYS BORDERING THIS PROJECT.
AT THE VERY LEAST, PLANNING AND ZONING SHOULD HAVE INCLUDED EXISTING STUDIES OF THE INDIAN RIVER AND THE INLAND BAYS DONE BY THE CENTER FOR INLAND BAYS.
P&Z can go to the CIB website and pull up and forward these reports on the degraded quality of these waterways--no fuss, no muss. Moreover, the memo references how “[a]pplicants are encouraged to analyze the development’s potential environmental impacts... that affect the ecological sensitivity of the inlands bays.” P&Z SHOULD require all projects affecting waterways to include these and other reports in the initial application. YOU’LL UNDERSTAND WHY MOUNTAIRE IS THE FOCUS OF SO NEGATIVE ATTENTION AND WHY DNREC IS SO DISTRUSTED AND WHY THIS PROJECT SHOULD NOT BE ALLOWED IN THIS WATERSHED.
IN SUMMARY, I URGE YOU TONIGHT TO DENY THIS REQUEST. SURELY THERE ARE OTHER OPTIONS OR BETTER LOCATIONS.
IF YOU DO NOT DENY THIS REQUEST TONIGHT, AT THE VERY LEAST DELAY YOUR DECISION UNTIL YOU GET THE MISSING INFORMATION AND CONSIDER PLACING SERIOUS, ENFORCEABLE CONDITIONS ON THIS AND ALL FUTURE PROJECTS. YOU DON’T WANT A REPEAT OF THE DECISIONS THAT HAVE LEAD TO MAJOR LAWSUITS INVOLVING HUNDREDS OF PEOPLE, SERIOUS HEALTH PROBLEMS, DIMINISHED PROPERTY VALUES, AND A FURTHER DAMAGED ENVIRONMENT.
The supplemental information provided to the public at Council sessions on Dec. 10th and 17th was eye-opening and disconcerting. Of particular interest and concern in DNREC’s December 4th letter is the revelation that although DNREC issued a sludge permit almost 30 years ago, there’s no evidence that the County ever authorized this through the conditional use process. Relatedly, this situation raises concerns about the validity of any sludge application on the three parcels listed in the application. (Equally eye-opening and of concern was getting public access to the DNREC letter dated December 4 and the “email string” referenced in that letter was frustrating experience in and of itself and is not discussed here but was detailed in my December 12 email message to County officials, including Todd Lawson and Ms. Cornwell.)
DNREC Sludge Permit But No Sussex Conditional Use Approval
DNREC’s DEC. 4 letter to the Planning and Zoning Department references an “email string” about DNREC having issued Mountaire a sludge permit almost 30 years ago at sites covered by the company’s pending CU application 2186. That email string written a year ago reveals the County never approved a Conditional Use to Mountaire or predecessor to apply sludge to the site. However, these emails— and the facts within—were not provided to the public at the time the DNREC letter was disclosed and were only made available after members of the community, including the Delaware Coalition for Open Government, requested the emails.
These emails were written approximately a year ago and clearly indicate the County had never approved a Conditional Use to Mountaire to apply sludge to the site now at the center of the CU application pending before County Council. These emails indicate P&Z and DNREC staff made a serious effort to identify whether there was ever a Sussex CU approval, but no evidence of such approval was found.
The Email Facts Were Not Included in Case Documents
Equally important, the P&Z Department never noted this lack of CU approval in its case analysis or other documents provided as part of the public records for the P&Z Commission’s public hearing on Mountaire’s CU application. What is not clear is to what extent this information was known within the P&Z office and whether it was intentionally ignored or conveniently forgotten when it came time to put together documentation for public discussion. Also, it is unclear whether P&Z disclosed this information to the P&Z Commission and/or County Council during their consideration of Mountaire’s application. This failure to inform the public reflects a failure to communicate, a failure to document, and a failure of other internal controls.
The email string clearly indicates the P&Z Department, including its legal advisors, failed to issue a conditional use permit prior to DNREC issuing its permit. It is also another example of DNREC not ensuring it had proper County authority to issue the permit. What’s not clear is why these failures occurred.
What neither the DNREC letter and P&Z documents indicate is on which of the three parcels of the proposed site was sludge applied, whether they are eligible for such application, and how much was applied under the DNRE-issued permit. First, these documents do not reference the Sussex zoning status of each of the three sites; County online records list parcel 234-28.00-1.00 as Zone AR-1 and AR-2 and parcels 234-28.00-2.00 and 234-28.00-3.00 are General Residential. Second, the documents do not indicate whether these sites qualify for the application of sludge under County code. By my analysis, neither parcel 2.00 and 3.00 do not allow for sludge application, because there is no conditional use for sludge application in GR zones. Third, there is no indication or discussion as to which parcels received sludge in the past or how much and when.
Internal Control Failure
These problems discussed above with this CU case indicate problems with internal controls. In some instances, there does not appear to be internal controls in place while in other instances internal controls don’t appear to have been followed.
The situation where a key document—the email string—was not included as part of the public record or made available to the public as part of the initial public record should never have happened. This situation indicates either a failure of internal controls regarding providing information to the public or an intentional effort not to provide the information. In either case, the impact is that not only did the public not have timely access to relevant information, it undermines public confidence in both the County P&Z Department and County Council that matters will be fully discussed and objectively considered. It begs the following questions: (1) Given this failure to disclose information happened in this case, how many other cases has this happened and the public was not provided information it should have been given? (2) What other cases handled by the P&Z Department excluded key information in summaries and not analyses provided to Council and the public?
Thanks for the opportunity to bring this issue before Council. Let me begin by saying don’t misunderstand--my comments are focused on process, not people.
I only recently became aware that sludge cannot be applied to land zoned General Residential--GR, for short. This awareness happened well after the Planning and Zoning Commission had its hearing on Mountaire’s conditional use request (case 2186), after the Commission voted to approve the request and recommend Council approve it, and after Council’s hearing on the request. I was still researching this when Council voted to approve the request.
When I heard that sludge cannot be applied to Sussex County property zoned GR given recent cases and decisions, I decided to delve into the County’s zoning and other ordinances to see if it was true. I was surprised to find that according to Sussex County’s Zoning ordinance this is true--see below. What hit me next was that in spite of this, the Commission approved Mountaire’s CU request and last week County Council approved that request based on the P&Z Commission’s recommendation. In effect, this meant that the Commission either missed or ignored the County’s zoning ordinance regarding sludge not being allowed on GR zoned land and recommended Council follow suit, which is did.
As a result, I am asking that Council either throw out or SUSPEND its approval.
Complicating things more has been figuring out how to approach Council about this. In looking at the zoning ordinance, Council’s and the P&Z Commission’s rules of procedures, and other County functions, I have not found any process or description of how to ask for this action regarding conditional use cases referred by the Commission.
So, I’m not really sure what to call this action other than say it’s a request to suspend the vote and ask that you do so at the March 10th Council session.
No Sludge is Allowed on Two of Three Parcels
Mountaire’s CU request was not fully compliant with the County’s zoning ordinance.
The request to apply sludge to the did not comply with GR zoned parts of the property in question. And either the P&Z Office and/or Commission did not understand this or ignored it. On Oct 24, 2019, the P&Z Commission incorrectly recommended approval of Mountaire’s request to apply sludge at its property, stating in Reason 3 that “[t]his use is consistent with the underlying zoning of the property.”
Specifically, only one of the three parcels at the heart of this case is allowed to have sludge applied on it. The largest of the three parcels--234-28.00-1.00--is zoned AR-1 Agricultural Residential and as such allows for both spray irrigation and land application of sludge under Article IV. AR-1 and AR-2 of the Zoning Ordinance. Spray irrigation is allowed under §115-20 Permitted uses B.(1) and land application of sludge is allowed as a conditional use under §115-22 Conditional uses. However, the other two parcels are zoned General Residential and as such sludge is not allowed to be applied, although spray irrigation is. These two parcels --234-28.00-2.00 and 234-28.00-3.00--are zoned GR and two key provisions of Article VI. GR General Residential prohibit sludge application. Neither §115-37 nor §115-39--permitted and conditional uses, respectively--list land application of sludge and according to an ordinance-wide provision unless uses are listed they are prohibited (see §115-15 Prohibited uses of Article III. Provisions Applicable to All Districts).
This prohibition of applying sludge on GR zoned parcels was not evident in the documentation in the record provided to the public, such as case documents provided via the Council’s website so neither I nor many others caught this. In addition, there was no evidence or other clear statement in the record about this nor that a comparison was made between the request and the applicable sections of the zoning ordinance.
For example, no where in the analyses or other information submitted in the record is there a memorandum or other notation about whether such a comparison was made, what the comparison showed, who did it, or when it was done. Something this fundamental should be straightforward, well-documented, and readily accessible.
This failure to document whether the request complied with or contradicted the county’s zoning ordinance is not the first time this has happened. Just recently, no such clear, straightforward comparison documentation was in the 7-Eleven and the Old Mill Landing case files.
Further, there is no indication that this kind of compliance check of request to ordinances is required by the P&Z Commission regarding conditional use applications.
While I believe I conducted a thorough review of the relevant ordinances and did not see such a requirement, perhaps I missed something, but I don’t think so. I did find this kind of comparison is required in the County’s Subdivision Ordinance--see Article II §99-8 B regarding subdivision preliminary plats.
Bottom Line: Problems Undermine Public Confidence in Decisions
Problems with this conditional use case and questions about other recent ones undermine the confidence of the public in local government decision-making. As someone who used to do this kind of analysis for a living, including compliance audits and investigative work, I find it disconcerting that there are indications that the P&Z Office and Commission lack sufficient internal controls to ensure due diligence is done in making conditional use recommendations to County Council. What I and others have seen in recent cases in the public’s eye raise serious questions about accuracy of information, effective procedures, and evidence-based decision-making and accountability.
Therefore, I urge Council to implement steps to restore public confidence in the accuracy and reliability of P&Z and Council decision-making. First, Council should suspend its decision regarding the Mountaire request by March 10 and go back and check for itself whether the request complies with the zoning ordinance, then render a decision. Doing this would bolster confidence in the Council “doing the right thing.” If this is not done, I believe Article XXVIII. Administration and Enforcement of the zoning ordinance can be used to invoke §115-228 on Enforcement, which states in part that "In case any building... or land is used in violation of this chapter [Zoning Ordinance], the [P&Z] Director is authorized and directed to institute any appropriate action to put an end to such violation." To me that means the Director should not issue any permit for sludge application on the two GR parcels.
Second, the P&Z Office and Commission must compare conditional use and rezoning requests to zoning ordinances and document that comparisons were done, including when and by whom, and annotate case files accordingly such as a memo to the file.
Third, the Council should consider hiring an independent organization to conduct an audit of P&Z procedures to strengthen case review and accountability. It should start with conditional use requests, including Mountaire case 2186.
Fourth, Council should review all subdivision applications, including those that normally do not go to Council, for compliance. This should be done until the procedures audit is completed and any recommendations to strengthen decisions are implemented.
To me, these steps are critically important to restore faith in the P&Z Office and the Commission and Council’s ability to rely on the accuracy of cases sent forward to Council. With the change in management and staff at the P&Z Office, now is the time to review, revise, and strengthen procedures.