Keep Our Wells Clean v. Dep't of Nat. Res. & Envtl. Control
| Decision Date | 19 March 2020 |
| Docket Number | Case No. S19A-07-002-ESB |
| Parties | Re: Keep Our Wells Clean, et al. v. Department of Natural Resources and Environmental Control, et al. |
| Court | Delaware Superior Court |
E. SCOTT BRADLEY JUDGE
Kenneth T. Kristl, Esquire
Environmental & Natural Resources
Law Clinic
Widener University Delaware Law
School
4601 Concord Pike
Wilmington, DE 19803
Devera B. Scott, Esquire
Kayli H. Spialter, Esquire
State of Delaware
Department of Justice
102 W. Water Street, Third Floor
Dover, DE 19904
R. Judson Scaggs, Jr., Esquire
Barnaby Grzaslewicz, Esquire
Morris, Nichols, Arsht & Tunnell LLP
1201 North Market Street
P.O. Box 1347
Wilmington, DE 19899-1347
Dear Counsel:
This is my decision on the appeal filed by Appellant Keep Our Wells Clean ("KOWC")1 of the Environmental Appeals Board's decision affirming the decision by the Secretary of Appellee Department of Natural Resources and EnvironmentalControl ("DNREC") amending the construction permit issued by DNREC to Appellee Artesian Wastewater Management, Inc. ("Artesian") on October 15, 2017 for the construction of Phase 1 of the Artesian Northern Sussex Regional Wastewater Recharge Facility ("ANSRWRF") northwest of Milton, Sussex County, Delaware.
ANSRWRF was to be built in three phases and have a wastewater treatment plant, three lagoons to store wastewater, treat up to three million gallons of domestic wastewater per day, and spray the treated domestic wastewater on agricultural lands. ANSRWRF was approved by DNREC under regulations adopted by it in 1999 (the "1999 Regulations"). As part of the approval process, Artesian submitted hydrogeologic and soil investigation reports to DNREC. DNREC approved those reports under the 1999 Regulations. DNREC adopted new regulations in 2014 (the "2014 Regulations"). The 2014 Regulations continue to require hydrogeologic and soil investigation reports; however, the hydrogeologic report required by the 2014 Regulations would require more test wells to be drilled than Artesian drilled previously under the 1999 Regulations.
The demand for domestic wastewater never materialized. Artesian filled the void by agreeing to take treated food processing wastewater from a chicken processing plant and spray it on the agricultural lands. Artesian filed anapplication on May 10, 2017 with DNREC to amend its construction permit to address the change from domestic to food processing wastewater, and to reconfigure and delay some aspects of ANSRWRF. The amended application did not include new hydrogeologic and soil investigation reports. The Secretary and the Environmental Appeals Board ("EAB") approved the amendments to Artesian's construction permit, concluding that the changes were not significant enough to require new hydrogeologic and soil investigation reports and to start the approval process from the beginning. I have concluded that the Secretary and EAB were correct because the applicable provisions of the 2014 Regulations do not require Artesian to obtain a new permit for two reasons. First, Artesian already has a permit. Second, the changes that Artesian wants to make to its permit are, as the Secretary and EAB found, not substantial enough to require new hydrogeologic and soil investigation reports.
ANSRWRF, as originally approved by DNREC, would initially treat domestic wastewater from the Elizabethtown housing project located northwest of Milton and ultimately serve the wastewater needs of the surrounding area. ANSRWRF was to consist of a wastewater treatment plant and three lagoons with storage for 159 million gallons of wastewater on a 75 acre parcel of land, becapable of treating three million gallons of wastewater per day, and spraying the treated wastewater on agricultural lands totaling 1722 gross acres (actual spray area of 1326.5 acres). ANSRWRF was to be constructed in three phases. Phase 1 would (1) have a wastewater treatment plant and two lagoons with storage for 67.5 million gallons of wastewater; (2) process one million gallons of wastewater per day; and (3) spray the treated wastewater on 608.9 acres of agricultural lands.
ANSRWRF was approved by DNREC under the 1999 Regulations. DNREC adopted the 2014 Regulations on January 11, 2014. The Elizabethtown housing project was apparently never built. However, Artesian located a new customer. Artesian and Allen Harim Foods, LLC ("Allen Harim") entered into an agreement whereby treated food processing wastewater from Allen Harim's Harbeson chicken processing plant would be sent via a pipeline to ANSRWRF. Artesian would store and then spray the already-treated wastewater on the existing agricultural lands that it had already leased. Allen Harim had previously been discharging its treated wastewater directly to "Beaverdam Creek," a stream about three miles from Milton, Sussex County, Delaware.
Artesian filed an application to amend its Phase 1 construction permit with DNREC on May 10, 2017. The application included an amended Design Development Report ("DDR"), which Artesian submitted to account for thechanges in the anticipated influent flow characteristics and phasing of treatment and disposal capacity. The amendment sought to (1) move construction of the wastewater treatment plant from Phase 1 to Phase 2; (2) build one 92 million gallon storage lagoon in Phase 1 instead of two lagoons totaling 67.5 million gallons; (3) accept and dispose of 1.5 million gallons to 2.0 million gallons of already-treated food processing wastewater per day instead of accepting and treating 1.0 million gallons of domestic wastewater per day (but still less than the 3.0 million gallons of discharge per day for all three phases); and, (4) dispose of the already-treated food processing wastewater, instead of the domestic wastewater, by spray irrigation on 961.1 gross acres (762.7 spray acres).
The 2014 Regulations require a Hydrogeologic Suitability Report ("HSR") and a Surface Water Assessment Report ("SWAR"). Artesian had, before obtaining the initial DNREC approval for ANSRWRF, submitted, among other things, (1) a Site Selection and Evaluation Report, dated January 10, 2007, that was reviewed and approved by DNREC, in which DNREC concluded that the proposed sites for spray irrigation met the current criteria for land treatment systems; and (2) a Design Development Report, dated June 19, 2002, which included a Soil Investigation Report prepared by Brickhouse Environmental and a Hydrogeologic Investigation Report and Preliminary Groundwater MoundingAnalysis prepared by Artesian Utility Development, Inc. DNREC approved the DDR, which was amended with subsequent supporting documentation, on April 29, 2010. Artesian submitted construction plans on October 27, 2011. DNREC issued the construction permit to Artesian on October 15, 2013.
Artesian did not submit an HSR and SWAR with its application for an amended construction permit on May 10, 2017. The application went to DNREC's Division of Water, Groundwater Discharge Section ("GWDS"), which determined that the application was administratively complete even though it did not include an HSR and SWAR. A public hearing was held on July 27, 2017. GWDS recommended approval of the application, reasoning, in part, that ANSRWRF would have the highest treatment level required for spray irrigation. The hearing officer, in a report dated October 5, 2017, recommended that the Secretary issue the amended construction permit for Phase 1. The Secretary issued an Order approving the amended application on November 2, 2017. The Secretary's decision noted that Artesian must meet the public access criteria for spraying treated wastewater on the ground, which is the highest criteria for spray irrigation. The Secretary also addressed what he considered to be the application's three most significant changes, concluding that an increase in the Phase 1 storage capacity from 62 to 90 million gallons, delaying construction of the wastewatertreatment plant to Phase 2, and increasing the use of agricultural lands to reflect Allen Harim's volume of already-treated food processing wastewater were reasonable and well-supported in the record. KOWC then filed an appeal of the Secretary's decision with the EAB.
The EAB held public hearings on May 22, 2018 and March 12, 2019. The issue of whether DNREC should have required Artesian to file an HSR and SWAR before DNREC considered Artesian's amended application was squarely before the Board. The Board heard from two witnesses, John G. Hayes, Jr. and Christopher P. Grobel, Ph.D. Hayes is DNREC's Program Manager for the Large Systems Branch, Ground Water Discharge Section. Grobel is an expert in hydrology and hydrogeology.
Hayes (1) was familiar with ANSRWRF as originally approved and with the proposed amendments to the Phase 1 Construction Permit; (2) was familiar with the 2014 Regulations; (3) knew that no HSR and SWAR had been filed with the amended application; (4) believed that only a new application required a HSR and SWAR; (5) believed that an existing permit could be amended; (6) believed that the proposed changes to the construction permit were not significant enough torequire a new application; (7) believed that the site was still suitable for the disposal of treated wastewater; (8) believed that Artesian had submitted everything that is was obligated to submit; (9) believed that the volume of the wastewater to be sprayed on the agricultural fields of 1.5 to 2.0 million gallons per day was less than the overall 6 to 7 million gallons per day that for which the site was suitable; (10) recognized that although domestic wastewater and the treated wastewater from Allen Harim contained different components, the differences were not significant enough to require a new permit; and (11) recognized that Allen Harim was treating its wastewater to a higher level than was required for spray irrigation because it was being stream discharged and that Allen Harim would continue to treat its wastewater to that...
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