BOA defers action on Allen Harim’s amendment request

Signs of opposition to Allen Harim’s request are displayed prior to the Aug. 20 Sussex County Board of Adjustment meeting.

GEORGETOWN – It’s time to review.

After a marathon two-plus hour public hearing Aug. 20, Sussex County Board of Adjustment members deferred action on Allen Harim’s request to change a condition of approval found in Findings of Fact regarding wastewater treatment tied to Harim’s proposed deboning operation at its Millsboro facility.

At issue: a condition imposed in July by the BOA through findings of fact stipulating “the spray irrigation updated with new technology must be up and running prior to operation.”

In the interim, Allen Harim, with authorized Department of Natural Resources and Environmental Control permitting, is seeking to truck upward of 40,000 gallons of wastewater daily from Millsboro to its Harbeson plant for treatment.

There was a public display in opposition to Allen Harim’s request on The Circle outside the County Administration Building prior to the BOA meeting.

Attorney Robert Gibbs, representing Allen Harim, offers testimony at the Aug. 20 at the public hearing during the Aug. 20 Sussex County Board of Adjustment meeting.

“There is no rationale for distinguishing between the trucking of water to a licensed facility for treatment of groundwater and treating it in a spray irrigation system,” said Allen Harim attorney Robert Gibbs of Morris, James, Wilson, Halbrook & Bayard LLP.  “So, forcing Allen Harim to wait only penalizes Allen Harim.”

It is Allen Harim’s belief, Mr. Gibbs testified, that the condition at issue “was inadvertently spoken and it really was not of the opinion of the board” and voted on … “to actually have the board stand between DNREC and its permitting processes and say, ‘You cannot open the deboning operation until the spray irrigation system is up and running.’ It is problematic for many reasons. That condition did not arise logically out of the hearing and the findings.”

Mr. Gibbs estimated Allen Harim’s financial loss is “something close to $100,000 a week in the delay that is undertaken here. So, it’s no insignificant. There truly is no difference. I keep talking to (Allen Harim CEO) Joe Moran, ‘Why does somebody think there is a difference between trucking water to a facility that is state-of-the-art and ready to take that per DNREC permitting, and waiting for two years and waiting for a spray irrigation system?”

Opponents, who from the start have challenged the proposed deboning operation that will occupy 50,000 square feet in the 460,000-square-foot former Vlasic pickle plant facility off Iron Branch Road, expressed concern about increased truck traffic in the downtown Millsboro area as well as other concerns.

“We are here before the board because Allen Harim was obviously not pleased with this board’s action in placing that condition on the granting of the use,” said Andrea Green, an attorney representing two local groups – Protect Our Indian River and Keep Our Wells Clean. “Allen Harim has essentially indicated to this board that you made mistake, that you didn’t intend to impose the very condition that you very specifically placed in the record. The appropriate action if it believes a mistake has been made is request for re-hearing. That is Rule 18. it specifically states the board may re-hear a matter for a mistake, inadvertent surprise or neglect. Mistake is clearly what they have alleged here.”

Attorney Andrea Green, representing Protect Our Indian River and Keep Our Wells Clean, delivers opposing testimony at the public hearing.

“What we have is Allen Harim submitting something and calling it an application for an amendment, when in fact what their position is, ‘We asked you to approve the trucking and hauling and you didn’t give us what we asked for. And that’s not the way this is supposed to work. We’re supposed to get what we ask for,’” Ms. Green stated. “Allen Harim would have you find that the members of this board essentially didn’t know what it was doing. Allen Harim would have you believe that you didn’t intend the literal meaning of the words contained within condition that you imposed. That claim is quite frankly false.”

“There have been no disingenuous representations,” stated Mr. Gibbs in his rebuttal. “I’m an attorney. I’m an officer of the court. I don’t lie to this board.”

Mr. Gibbs said Allen Harim was not mandated to seek a rehearing. “When the condition came down that night, Allen Harim said, ‘that can’t be correct,’” said Mr. Gibbs. “We looked at the various opportunities and possibilities to either appeal or rehear or whatever. We are focusing on one condition that was attached to an approval. There was one condition that seemed to us to be completely inconsistent with the overall tenor of the Findings of Fact and the legal conclusions. So, we filed for amendment.”

The Millsboro facility houses Allen Harim’s new corporate headquarters, which employs about 50 people, including executive, accounting and sales personnel. It also houses a consignment warehouse operation that stores boxes and other packaging materials from International Paper and other vendors that are used in the Allen Harim production process.

With conditions, the BOA approved the special-use exception for the deboning operation in May.

Allen Harim officials have said the deboning operation will employ about 165 people.

All of the chicken will be processed in Harbeson and trucked to Millsboro for deboning, packaging and shipping. Once all the necessary permits are obtained, that work is expected to begin this fall. Allen Harim currently ships chicken to be deboned to Georgia for further processing.

In presenting its spray irrigation plan this spring, Allen Harim noted that any land used for spray irrigation is subject to a nutrient management plan that carefully balances the need for nutrients in growing crops, and how many nutrients are taken up by the crops. The goal, the company said. is a net zero equation, so no excess nutrients make it into the groundwater.

Since then, advanced technology has entered the picture: reuse, or recycling, of wastewater that could greatly reduce the scope of spray irrigation. Permitting and construction could add up to several years.

“One example that I would like to give as to why this idea that we should make sure that spray irrigation system is up and running before we start any operations, in this permitting process recently there have been a lot of discussions. There is another whole technology that is becoming more and more used and that is water reuse,” said Mr. Gibbs. “And the numbers are rather significant. There can be up to 80 percent, which would cut the spray irrigation very significantly. If that takes longer to come into place because it takes more interaction with DNREC the result is better for everyone. The result is far better for the environment because the spray irrigation – as great as a spray irrigation system is – it has down times.”

“People in opposition should be clapping,” Mr. Gibbs said. “They should be applauding Allen Harim for taking the high road and trying to use the very best technology out there including the water re-use system, which would again delay and cost money.”

Everett Brown, senior director of operations for Allen Harim, said the company has contracted a Texas firm experienced in water reuse systems.

“I feel really good about it, the possibility to reuse 80 percent of water. We can clean it up to drinking water standards and reuse it,” said Mr. Brown. “It still has to meet all spray irrigation standards. We would have to haul it in months when we cannot spray. There will be some water you cannot reuse, so it’s not 100 percent. It’s more like 80 percent.”

Mr. Brown said Allen Harim presently has a permit from DNREC to truck wastewater from Millsboro to New Castle County.  “It’s a lot more expensive,” he said. “That’s why we applied for the one to go to Harbeson. We’ve got plenty of capacity.”

Opponents also stated lack of trust in Allen Harim as well as DNREC.

Ms. Green referred to Allen Harim’s plans at its Harbeson chicken slaughtering plant.

“In support of that I would point to Allen Harim’s own history. In 2015 they applied to the Water Infrastructure Advisory Council for two loans from the state of Delaware, one of which was to build a state-of-the-art water treatment facility in Harbeson,” said Ms. Green. “This is quite striking; it was to allow it to build a water re-use system that was going to vastly reduce the amount of contaminants in the wastewater and permit them to reuse a substantial portion. The state granted them two loans, one of which was to improve the existing wastewater facility and a second loan to build that water re-use system. That was in 2015. After being granted the loan they decided not to build that facility. They never went forward with it. Instead, what they decided to do was to take the wastewater from that facility that was not cleaned with any kind of re-use capacity and apply to DNREC to pipe it eight miles up the road to Milton where it would go into a 90-million-gallon lagoon. Allen Harim, if you remove this condition, might never build a water treatment facility in Millsboro. They just might keep on trucking it. Keep on trucking it across the county, through Millsboro where traffic is just a breeze to get through all year long; trucking it past schools.”

Ms. Green also referred to statements in transcripts made by BOA member E. Brent Workman at the May 7 session during which he stated, “What I would like to see is the irrigation get running when they open that plant and have it running. I don’t think there should be any hauling away. I don’t think they should be operating unless the irrigation system is operating.”

George Mathes holds a sign in opposition to Allen Harim’s request.

Traffic concerns were also prominent at both BOA hearings, Ms. Green said.

“Based on all of tha,t Allen Harim’s position that there was no reason for imposition of the condition and that the board did not actually intend the limitation itself is disingenuous at best,” said Ms. Green. “Absent the condition that this board placed, if Allen Harim is either denied a permit for spray irrigation or for whatever reason decides not to go forward with its application to build a new wastewater treatment facility or even this fancy special re-use facility which was only introduced today into any part of the record as far as I am aware, the truck hauling from the Allen Harim facility would be allowed to proceed as long as it’s approved by DNREC;  five days a week, 52 weeks out of the year. The existing transportation study would be completely invalid.”

In a statement to the press at a ribbon cutting earlier this month at the Millsboro facility, Ms. Green said Allen Harim’s CEO stated that “until its spray irrigation system is in operation the company will be hauling its wastewater to its Harbeson poultry processing facility for disposal. In other words, Allen Harim announced at the beginning of this month that it has no intention of complying with this board’s order.”

Cheryl Mathes shows her signs of opposition to Allen Harim’s proposal.

“In considering both the application that you have in front of you and all other applications, the board has the responsibility to weigh both credibility of witnesses and to carefully consider everything it has before it,” said Ms. Green. “The two organizations that I am here on behalf of ask you to not simply accept every representation that is made by Allen Harim as fact … and not by the same token to simply dismiss representations made by opponents as speculative.”

“Do you say there is a procedural defect because Allen Harim said the board of adjustment made a mistake,” said BOA member Bruce Mears.

“In essence, yes,” said Ms. Green.

“In essence?” said Mr. Mears.

“My answer is yes,” Ms. Green said.

“I didn’t hear Allen Harim say we made a mistake,” said Mr. Mears. “I heard the change was we asked them to use the spray system and we found out that it would take at least two years to get this approved. That was a change and they came up with a better way to treat the water. I didn’t once hear any indication, any statement, any testimony that would make us feel – I speak for myself – make me feel like we made a mistake.”

“Allen Harim does not believe the board of adjustment intended the literal reading of the second condition. If that is not saying you made a mistake …” said Ms. Green.

Sussex County Board of Adjustment chairman John Mills monitors the testimony at the Aug. 20 on Allen Harim’s request.

BOA chairman John Mills reminded several speakers to address the condition issue at hand and not veer off into other issues.

“What is being done about the sanitary waste at the plant right now?” asked Charlotte Reid.

“That is not an issue tonight,” Mr. Mills said. “That is an issue addressed by DNREC.”

“So, the public health and safety that the board is responsible for doesn’t include anything that DNREC has to do?” Ms. Reid said.

“We’re not responsible for public health and safety in the same concern that DNREC is,” Mr. Mills said.

“So, what the board is doing is giving basically a certificate of occupancy for a plant to start operating in the dark without knowing how the wastewater is going to be processed, where it is going to be trucked; whether there is sanitary waste involved,” said Ms. Reid.

In her testimony punctuated by an exchange with Mr. Mills, Maria Payan, a consultant with Socially Responsible Agricultural Project, presented numerous documents and some different figures.

“What they are actually proposing to do; here is their business plan for 600,000 gallons of wastewater,” said Ms. Payan, who psubmitted documents for the record. “It’s 600,000 gallons of waste. That means there will be 15 times the truckloads as what was represented here. What they are doing is violation of federal law.”

At one point with Ms. Payan at the podium, Mr. Mills slammed the chairman’s hammer.

“Let me speak,” said Mr. Mills. “We have already heard testimony that they have not been honest with us. I asked, ‘Don’t be redundant.’ We hear you; the truck traffic is bad.

“I think it is your duty that things are followed up on,” said Ms. Payan.

“I think a number of us get upset … whenever we say something it is speculative. Whenever they (Allen Harim) say something it’s like Moses came down with the stone from the mountain. Their state-of-the-art system is purely speculative.,” said Lew Podolske. “I just ask that you keep this requirement on them because I think it’s the only way that we can be sure that they will be working to put forward a real water treatment plant. We need to keep pressure on them.”

A requested show of hands shows some of those opposed to Allen Harim’s request.

“I know you guys depend on the Department of Natural Resources to provide enforcement of rules and regulations,” said Jay Meyer. “We have lost faith in DNREC as far as them looking out for the welfare of the citizens of the state. DNREC is not doing its job. To just pass the buck to them and say that the board has no responsibility, well in my mind you guys do have responsibility to the citizens of Sussex County. In our four years of trying to work with DNREC we have seen many failures in their attempts to handle environmentally sensitive situations.”

Following about 2 ½ hours of testimony, four BOA members – Mr. Mills, Mr. Mears, Mr. Workman and Dale Callaway – decided to defer action on the matter. BOA member Ellen Magee recused herself prior to the hearing on Allen Harim’s request.

News Editor Glenn Rolfe can be reached at grolfe@newszap.com

You are encouraged to leave relevant comments but engaging in personal attacks, threats, online bullying or commercial spam will not be allowed. All comments should remain within the bounds of fair play and civility. (You can disagree with others courteously, without being disagreeable.) Feel free to express yourself but keep an open mind toward finding value in what others say. To report abuse or spam, click the X in the upper right corner of the comment box.