Sussex Green

On June 12, 2009, Senator Barbara Boxer (D-California) announced she had been told by the Department of Homeland Security…

that her committee can’t publicly disclose the location of coal ash dumps across the country…

There are 44 sites deemed by the Environmental Protection Agency to be high hazard, but Boxer said she isn’t allowed to talk about them other than to senators in the states affected. “There is a huge muzzle on me and my staff,” she said.¹

Since this announcement, Sussex Green has been concerned that the old ash landfill on Burton Island at the Indian River Generating Station (IRGS) and the Invista Seaford coal ash ponds were on the EPA list.

The Good News

The Natural Resources Defense Council has just released a map detailing the locations of high-risk coal ash dumps and ponds across the United States. The good news, the Burton Island and Invista sites are not on the map. You can view the map by clicking on one of the links below:

• View using Google Maps in a browser
• View using Google Earth

The Bad News

Around the country, there are approximately 600 landfills and ponds that store coal ash. The Natural Resources Defense Council’s map highlights over 170 high-risk power plant ash dumps and ponds.

The bad news, a false sense of security that the Burton Island old ash landfill and other ash landfills and ponds in Sussex County are not “high risk” could cause politicians and the public to grow apathetic towards their cleanup.

1. Huffington Post, June 12, 2009 [↩ ]

Last night, June 11, the Sussex County Planning and Zoning Commission (P&Z Commission) approved change in zone requests 1661 and 1662. These requests change the zoning of two Wilson Baker, Inc. parcels on Route 30 near Milton from AR-1 to Heavy Industrial (i.e., HI-1).

Both change in zone requests were presented by P&Z Commission member I.G. Burton. Burton noted that there was a great deal of interest in these zoning changes and that he was at first troubled by a rezoning that would allow heavy industrial uses on these parcels.

He said he changed his mind after his research showed that only light industrial uses (e.g., banks, greenhouses, hotels, parking garages, professional offices, etc.) could be automatically allowed while each request for a heavy industrial use must go before the Sussex County Board of Adjustment for approval.

What Mr. Burton fails to mention is that Section § 115-110 of the Sussex County Code, that he used in his research, lists other permitted industrial uses, like concrete mixing plants, asbestos products, engine testing, galvanizing or plating, and sawmills, that may be allowed without Sussex County Board of Adjustment approval.

Mr. Burton and fellow P&Z Commission member Michael Johnson both felt that these requests were appropriate because the parcels were on an truck route, were adjacent to a rail spur, and could add jobs to the Milton economy. P&Z Commission member Rodney Smith called these parcels unique and felt the change of zone requests were appropriate.

After very little debate, the P&Z Commission voted unanimously to approve each request. Unfortunately, Messrs. Burton, Johnson and Smith misread the Sussex County Comprehensive Plan Update (Comp Plan) strategies regarding HI-1 zoning in a Town Center designation.

Sussex Green is not going to rehash the entire sequence of events leading up the public’s concern over these change of zone requests or the procedures that the P&Z Commission and the Sussex County Council (Council) employed to make the land use changes that allowed these requests to fly. If you wish, you can read the details in the following two posts:

• Is the Sussex County Comprehensive Plan Vaporware?
• Sussex County Comprehensive Plan Part II

What Sussex Green is going to focus on are passages in the Comp Plan and testimony presented at the public hearing regarding permitted uses in “Town Center” and “Developing Area” designations.

Sussex County Comprehensive Plan

We have commented before that the Comp Plan does not have any teeth. This is by design because in Sussex County conditional use rules the land.

It has been touted by the land owners, the Council and other government entities that the 2 Baker parcels were designated “Town Center” parcels therefore qualifying them to accommodate HI-1 zoning. Mr. Burton in his motion for the approval of both 1661 and 1662 to be rezoned from AR-1 to HI-1 used the term “Developing Area” with regard to the Comp Plan Growth Area designations.

1661 and 1662 were actually added to the Future Land Use Plan in June 2008 and are in fact in a “Town Center” (not a “Developing Area”) designation. However, the designation of “Town Center” IS NOT consistent with heavy industrial zoning. In fact, the “Town Center” designation recommends against heavy industrial.

Strategies For Guiding Growth (The Future Land Use Plan)

The Future Land Use Plan described in this Comprehensive Plan Update divides Sussex County into Growth Areas and Rural Areas.

Growth Areas

Sussex County’s primary Growth Areas will continue to be centered around its 25 municipalities. These Growth Areas are where allowable residential densities will remain highest and where most commerce will continue to be directed.¹

There are three types of growth areas described in the Comp Plan; Town Centers, Developing Areas, and Environmentally Sensitive Developing Areas.

Town Centers - In these areas, medium to high density housing should be permitted ranging from 4 to 12 homes per acre. Compatible commerce should also be allowed.²

The Comp Plan lists the following strategies for permitted uses in a Town Center designation:

Permitted Uses – A range of housing types are appropriate in Town Centers, including single-family homes, townhouses and multi-family units. Commercial uses should serve the daily needs of residents, workers and visitors. Retail and office uses compatible with adjacent areas are appropriate. However, large intense shopping centers are encouraged in Highway Commercial areas. Some smaller scale, low impact industrial operations may be appropriate, but larger industrial uses are proposed to be directed to General Industrial areas. Appropriate mixtures of residential, institution and light commercial uses should be allowed.³

Finally, the Comp Plan lists recommended densities and zoning districts for various land use designations. Notice in the following table from the Comp Plan that HI-1 zoning is recommended only for Medium Density “Developing Area” designations. “Town Center” designations in the High Density use category lists only Limited Industrial District (LI-1) zoning.

Click to enlarge

This inconsistency was brought to the attention of the Council and is part of the public testimony of March 24, 2009. It can be heard at the end of County Council audio tape 032409-13. However, the testimony was omitted in the County Public Hearing minutes.

The County often justifies conditional and exceptional use approvals by stating that they are following the law. Sussex Green wonders when the County will start implementing the land use strategies it put forth in its Comp Plan.

1. Sussex County Government, Sussex County Comprehensive Plan, June 2008, Preface, pp 2 [↩ ]
2. Sussex County Government, Sussex County Comprehensive Plan, June 2008, Preface, pp 2 [↩ ]
3. Sussex County Government, Sussex County Comprehensive Plan, June 2008, Future Land Use Element, pp 14 [↩ ]

A message from lobbyist Mark Brunswick forwarded to Sussex Green.

Help stop Fish Kills in Delaware Waters

HCR 7 is a resolution urging the Department of Natural Resources and Environmental Control to require all facilities that operate in Delaware waters and utilize cooling water intake structures to implement “closed-cycle” cooling systems.

This resolution urges Big Energy to adopt systems that will protect wildlife and the environment.

Richard Schneider, who refers to himself as an average citizen, has done an incredible job getting this out of the House and before the Senate. But Big Energy is making moves to kill the resolution and we observed some of their actions in the Senate on June 3.

John Flaherty, friend and fellow lobbyist, was able to broker a meeting between the energy lobbyists and supporters of the resolution for 2 p.m. on Tuesday in the hearing room behind the Senate chamber.

When Jim Black of the Clean Air Council proposed to one of the energy lobbyists that one speaker from each side present their position Big Energy stated that they have lots of points of view to weigh in. So we need an army of folks to be present, state support and outnumber the opponents of this resolution. Let’s try to get as many people as we can to Legislative Hall on Tuesday, June 9 at one o’clock for this meeting. We need enough people to force the meeting to a larger room and ensure that the resolution gets to the Senate floor where it will pass.

Talking points for those attending meeting:

• Indian River Power Plant owned by NRG, the Delaware City Refinery owned by Valero and the Connectiv EdgeMoor Power Plant owned by Pepco Holding, Inc should install close cycle cooling towers to cool equipment and systems. These cooling towers would recycle water like a radiator and drastically reduce the ravaging of aquatic life that occurs daily in Delaware’s waters.
• The Indian River Power Plant takes in an average of 282 million gallons of water per day and the Valero’s refinery draws in 250 to 450 million gallons of water a day. Giant intakes are continuously pumping and discharging trillions of gallons of water a year, ravaging ecosystems, nurseries, feeding grounds, in addition to the killing of billions of fish and other water creatures.
• Some fish are trapped on the intake screens; others are descaled. Some are pulled through the screens and killed by heat or torn apart by the force of the water. The carnage caused by these outdated cooling systems are “hidden, stealth fish kills that take place under water, out of sight.” (Maya K. van Rossum Director of the Delaware Riverkeeper Network)
• The federal government estimated in one year (2001) financial losses to commercial and recreational fishing due to the kills at Edge Moor plant alone was $12.5 million.

Check out the profits of these companies:

• Pepco Holdings profits for four years (2005 thru 2008) are $1.292 billion
• Valero’s profits for five years (2004 thru 2008) are $18.2 billion
• NRG’s profits for three years (2006-2008) is $2.38 billion

Surely they can afford to spend a miniscule percentage of these profits to install closed cycle cooling tower?

Background

In 1999, a three day meeting was hosted by Southern Illinois University to discuss the problems, solutions, and concerns related to the reuse of coal combustion by-products or CCBs (e.g., coal ash, fly ash and bottom ash). One of the case studies presented at this forum highlighted the use of coal ash as a subgrade material in the construction of cell number 3 at the Jones Crossroads landfill in Sussex County also known as the Southern Solid Waste Management Center (SSWMC).

The case study describes how nearly one million tons of fly ash from the Indian River Generating Station (IRGS) and the DuPont Seaford facility was used by the Delaware Solid Waste Authority (DSWA) as a substitute subgrade fill material in place of soil during construction of cell number 3. The subgrade material was placed at the bottom of the cell next to the water table as seen in the following diagram:

Click to enlarge

In 1988, DSWA agreed to the use of fly ash on an experimental basis for a portion of the subgrade fill material used in the construction of cell number 2 (now closed).

In 1995, construction began on cell 3…Groundwater in the vicinity of the new landfill cell was generally found within 2 feet below the ground surface, causing soft soil support conditions. The depth of subgrade fill material beneath the new liner system for cell number 3 was designed to vary from 6 to 22 feet.

Approximately 690,000 cubic yards of subgrade fill material were required to be placed and compacted beneath the liner system for cell 3. An additional 60,000 cubic yards of fill material were required for berm construction. Because of the availability of granular borrow material in Sussex County, original cost projections by DSWA for earthwork construction were based on the use of select borrow from sand and gravel suppliers in the general area.¹

However, based on an analysis of the strength and acceptability of the fly ash used in cell 2, Delmarva Power and its ash marketing contractor VFL Technology Corporation successfully employed a long-range strategy to obtain approval from the DSWA for the use of fly ash for cell number 3.²

Fly ash from the Indian River power station began being delivered to the job site on September 13, 1995…For the first month, fly ash was delivered using 30 end dump vehicles and an average of 4,800 tons per day of fly ash was delivered to the job site.

After the first of the month, the number of end-dump trucks was increased from 30 to 80 and the average amount of fly ash from Indian River that was delivered to the job site was increased to approximately 8,000 tons per day. The maximum tonnage of fly ash that was delivered on any one day was 15,606 tons on December 12, 1995…In all, a total of 872,105 tons of Indian River fly ash were delivered to the job site on 109 different days, involving a total of 43,605 truckloads.

Fly ash from the DuPont Seaford facility began being delivered to the job site on October 10, 1995…In all, a total of approximately 51,000 tons of DuPont Seaford fly ash was delivered to the job site on 17 different days, which is an average of 3,000 tons per day. The total amount of fly ash from both power plants used as subgrade fill and/or berm construction material on this project amounted to 923,105 tons, making this one of the largest single ash utilization projects in the eastern United States.³

In 1997, construction began on a fourth cell at the SSWMC landfill. DSWA also agreed to allow the use of fly ash as subgrade fill and berm material for this cell. Since cell number 4 is of comparable size to cell number 3 it is possible that an additional one million tons of ash has been placed close to the water table. The actual amount has not been verified by Sussex Green.

The construction of a fifth cell at the SSWMC site is currently in the permitting phase with DNREC.

Annual Monitoring

The EPA requires that all municipal solid waste landfills monitor, at least twice a year, underlying groundwater for contamination during their active life and after they have been closed. To do this, operators of landfills must install a groundwater monitoring system consisting of a series of wells that collect samples from the uppermost aquifer. The SSWMC landfill sits on top of the Shallow Columbia Aquifer.

For comparison purposes, note the aerial picture of the SSWMC landfill followed by a diagram showing the location of the monitoring wells.

Click to enlarge

Click to enlarge

One conclusion in the SSWMC 2008 Annual Environmental Monitoring Report describes an increasing trend from samples taken in well SC-22 and should be considered a warning signal with regard to the continued use of coal ash as a subgrade fill material.

Based on 2008 groundwater sampling results, the Shallow Columbia Aquifer does not appear to have been impacted by landfill leachate. However, attention should be given to the increasing trend noted in SC-22. It is believed that the elevated concentrations reported are related to the fly ash used in construction of the subbase of Cell 3. SC-22 will continue to be closely watched throughout the 2009 sampling year.⁴

The elevated concentrations noted in the above conclusion refer to arsenic and selenium.

Construction of Future Cells

Both Frank Gravas and Ashby Bryan of DNREC have assured environmental advocates that coal ash will not be used in the construction of cell number 5. However, the following technical specification from the DSWA cell permit application leaves open the possibility that coal ash could be used.

If ash is used as fill material within the liner limits, a 12-inch buffer shall be maintained between the ash and the bottom of the liner system. The uppermost 12-inches of the liner subgrade shall be common fill.⁵

Given the potential dangers of coal ash, DNREC and the DSWA should issue official statements attesting to the fact that ash will no longer be used in landfill construction.

1. J. Bacher, R. Collins, J. Taylor, M. Miller, Coal Combustion Fly Ash Construction Material in a Sanitary Landfill Project, 1999, pp 201 [↩ ]
2. J. Bacher, R. Collins, J. Taylor, M. Miller, Coal Combustion Fly Ash Construction Material in a Sanitary Landfill Project, 1999, pp 202 [↩ ]
3. J. Bacher, R. Collins, J. Taylor, M. Miller, Coal Combustion Fly Ash Construction Material in a Sanitary Landfill Project, 1999, pp 205 [↩ ]
4. Brickhouse Environmental, 2008 Annual Environmental Monitoring Report-Delaware Solid Waste Authority-Southern Solid Waste Management Center, April 2009, pp 40-41 [↩ ]
5. CDM Associates, Delaware Solid Waste Authority Southern Solid Waste Management Center, Cell 5 Disposal Area Application-Section 5 Appendix B Technical Specifications, pp 10, September 2007 [↩ ]

Councilwoman Joan Deaver has asked for a legal opinion regarding the procedure Sussex County uses to add land to growth zones without public hearings. This is an important request and leads directly to the heart of Sussex County’s history of site plan and land use approvals using conditional use decrees, which effectively bypass the Sussex County Comprehensive Plan.

Below is text of Deaver’s request to Vance Philips, President of the Sussex County Council, and David Baker, Sussex County Administrator.

“Dear Sussex County Council and County Attorney:

A number of my constituents have asked me why certain parcels of land were added to the County’s Growth Area AFTER the Comprehensive Land Use Hearings without benefit of specific public notices and public hearings on those parcels. I agree with my constituents. Here is one of their comments.

I think all proposed amendments to the comprehensive plan land use maps should require a public hearing. These amendments pave the way for changes in zoning requests. The public should have input to these amendments. When the comprehensive plan is voted upon, the proposed map amendments should be heard at a separate public hearing dedicated to the map series changes. If land use map amendments are proposed at times that do not coincide with the 5-year cycle of the comprehensive plan renewal, those proposed amendments should be given their own public hearings before becoming part of the comprehensive plan land use map.

I request a legal opinion on this. I do believe that this it is improper and I want all lands that were added in that manner to be made subject to a public hearing with proper notice to surrounding property owners and residents. The people deserve nothing less.

For example, two of the parcels in question are the Baker properties that are soon to be voted on regarding a possible rezoning to heavy industrial:

1. C/Z #1661 – AR-1 Agricultural Residential to HI-1 Heavy Industrial application of Wayne Baker – 9.03 Acres – Tax Map I.D. 2-35-19.00 Parcel 22.00…West of Route 30, 2,300 feet north of Road 319 & south of the Railroad
2. C/Z #1662 – AR-1 Agricultural Residential to HI-1 Heavy Industrial Application of Wayne Baker – 19.02 Acres – Tax Map I.D. 2-35-19.00 Parcel 23.00…West of Route 30, 1,200 feet north of Road 319 & south of the Railroad. Wilson Baker Parcel 23 Location: West side of Route 30, 1200 feet north of the Route 30 & SCR 319 intersection. For a 4 unit industrial park to include unknown warehousing and/or manufacturing sites.

Before the vote on the Baker rezoning to Heavy Industrial I want a legal opinion as to whether that land and all the others were legally added to the growth zone with proper notice and proper hearings.

One other example is the vast parcel east of Route 1 that is now PLUS # 2008-10-02 — Overbrook Town Center…Location: Southeast corner of Route 1 & Cave Neck Rd…Description: Rezoning of 114 acres from AR to CR-1 for a shopping center with a combined retail space of 890,000 sq. feet in Level 4

I also want the county to devise an ordinance to prohibit lands from ever being added to the county’s growth zone in this manner again. I will introduce that ordinance and we will have a hearing on it.

Thank you for the opinion and for your cooperation.

Respectfully,
COUNCILWOMAN JOAN DEAVER

For a detailed discussion of the Sussex County Comprehensive Plan and an analysis of the procedure used by Sussex County to add the lands mentioned above to growth zones, please read the following posts:

• Is the Sussex County Comprehensive Plan Vaporware?
• Sussex County Comprehensive Plan Part II