Public Comment on The Allen Harim Permit
This is the public comment sent in by Greg Rosner about the proposed permit by Allen Harim for the Harbeson Facility. The permit in question is the NPDES Permit No. DE 000029 (State Number WPCC 3131F/76 This is information that people need to know and hear. Greg allowed me to post this as an editorial to help get the necessary information to everyone. If you haven’t sent in a public comment, read this and then send your comments to … Anthony.Hummel@State.DE.US ; Robert.Haynes@state.de.us …. You have until the end of today (5 PM), Thank You
Robert P. Haynes, Esq
Senior Hearing Officer, Office of the Secretary
Department of Natural Resources and Environmental Control
P.O. Box 1401, 89 Kings Highway
Dover, Delaware 19901
Pursuant to the DNREC application for NPDES Permit No. DE 000029 (State Number WPCC 3131F/76) the
following comments are submitted for the suspension of the permitting process.
General Comments on Due Process
A. Lack of due process for NEPA standards, including but not limited to an EA (Environmental Assessment)
or a project EIS (Environmental Impact Statement) which would provide the proper analysis for the
broad scope of anticipated impacts to the aquatic and terrestrial environments.
B. The exceeding of TDML’s for the spectrum of the discharge matrix, most importantly aluminum which is
a known carcinogen and heavy metal subject to bio-accumulation in the food web.
C. Clean Water Act concerns. According to the DNREC website, “As established under the Clean Water
Act (CWA), water quality standards are the regulations which list designated uses, water quality criteria,
and an antidegradation policy. The standards have been established to protect public health and welfare
and enhance water quality in the State. While the standards are Delaware regulations, they must be
approved by the EPA. If the EPA cannot approve the standards, then EPA is mandated to take over the
process and set standards for state waters in a process known as promulgation. Failure by the state or
EPA to implement the requirements of the CWA subjects the EPA to citizen law suits to enforce the
provisions of the Act.”
Specific comments and application of DE Administrative statues and regulatory
laws for the specified permit.
A. The water flow dynamic of the effluent, starting at the Beaverdam creek, which then flows into the
Broadkill River and finally into the Delaware Bay requires a ERES criteria. By definition: Waters of
exceptional recreational or ecological significance (ERES): Waters which are important, unique,
or sensitive from a recreational and/or ecological perspective, but which may or may not have
excellent water quality. Such waters shall normally have regional significance with respect to
recreational use (fishing, swimming and boating), or have significant or widespread riverine,
riparian, or wetland natural areas.
B. The Bayshore Initiative is a current DNREC project in this watershed area. Federal lands are listed
mapped as such above in red. I see no input on the permit application from federal and state agencies
responsible for habitat conservation and preservation.
C. The Bayshore Initiative is further defined in scope: Extending from Pea Patch Island in New Castle County to the City of Lewes in Sussex County, the Delaware Bay shoreline is widely recognized as an area of global ecological significance. Its expansive coastal marshes, shoreline, agricultural lands and forests provide diverse habitat to many species, including migratory shorebirds. Birders and biologists
from around the world come to central Delaware to witness the annual spring spectacle of more than a half million shorebirds taking a rest stop to dine on eggs laid by spawning horseshoe crabs.The Delaware Bayshore Initiative will collaboratively build on the region’s reputation as a unique and beautiful natural resource, and help improve the shoreline economy by encouraging more Delawareans and visitors to enjoy it through activities such as recreational fishing, hunting, boating and ecotourism. This non-regulatory approach will continue the tradition of DNREC’s commitment to preserving the state’s coastal zone, which has been protected by Delaware’s Coastal Zone Act for the past 40 years. Due in large part to the legacy of that landmark legislation, more than half of the Delaware Bayshore’s acreage remains undeveloped, and is today protected as state or federal wildlife lands.By building on public-private partnerships and leveraging state, federal and private resources, the Bayshore Initiative targets three major areas for improvement:
Conservation and ecological restoration – Connect wildlife areas by acquisition or easement of unprotected lands; restore native habitat; and protect resources.
Recreation and connectivity – Focus strategic investments to connect wildlife areas to urban centers; maximize enjoyment of the outdoors by providing safe, healthy recreational experiences; and enhance access to wild areas.
Engagement and marketing – Engage, educate and inspire the next generation of environmental stewards; partner with local communities and organizations to promote the area regionally, nationally and internationally; and promote local volunteerism students with outdoor living classroom educational options; and to help prepare Delaware for future climate changes and impacts. It was recently recognized by the by U.S.Department of the Interior as one of the country’s most promising ways to reconnect Americans to the natural world.
D. Therefore the applicable water quality standards listed below should be enforced.
5.0 Antidegradation and ERES Waters Policies
5.1 ‘ Existing in stream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.
Degradation of water quality in such a manner that results in reduced number, quality, or river or stream mileage of existing uses shall be
prohibited. Degradation shall be defined for the purposes of this section as a statistically significant reduction, accounting for natural variations, in biological, chemical, or habitat quality as measured or predicted using appropriate assessment protocols.
5.2 Where the quality of the waters exceeds levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected. In the case of waters of exceptional recreational or ecological significance, existing quality shall be maintained or enhanced. Limited degradation may be allowed if the Department finds, after full satisfaction of public participation provisions of 7 Del.C. Sections 6004 and 6006 and the intergovernmental coordination provisions of the State’s continuing planning process as required in 40 CFR Part 130, that allowing lower water quality is necessary to accommodate important social or economic development, or would result in a substantial net environmental or public health benefit, in the area in which the waters are located. In allowing such degradation or lower water quality, the Department shall assure maintenance of water quality adequate for full protection of existing uses. Further, the Department shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control.
5.3 Where high quality waters constitute an outstanding National resource, such as waters of National parks and wildlife refuges, existing quality shall be maintained and protected.
5.4 In those cases where potential water quality impairment associated with a thermal discharge is involved, the anti-degradation policy and implementing method shall be consistent with Section 316 of the Water Quality Act of 1987.
5.5 The hearing requirement imposed by Subsections 5.2 above shall not be construed to impose a requirement for an additional public hearing where such a hearing is otherwise held pursuant to law, provided the requirements of this section are hereby met.
5.6 Criteria for Waters of Exceptional Recreational or Ecological Significance (ERES Waters)
5.6.1 General Policy
18.104.22.168 Designated ERES waters shall be accorded a level of protection and monitoring in excess of that provided most other waters of the State. These waters are recognized as special natural assets of the State, and must be protected and enhanced for the benefit of present and future generations of Delawareans.
22.214.171.124 ERES waters shall be restored, to the maximum extent practicable, to their natural condition. To this end, the Department shall,
through adoption of a pollution control strategy for each ERES stream basin, take appropriate action to cause the systematic control, reduction, or removal of existing pollution sources, and the diversion of new pollution sources, away from ERES waters.
126.96.36.199 Discharges to ERES waters shall be avoided to the maximum extent practicable. In order to be permitted, a discharge must be the
least environmentally damaging practicable alternative.
188.8.131.52 Prior to any public notice for a discharge permit required pursuant to 7 Del.C. Ch. 60, the Department shall make a determination that potential impacts have been avoided to the maximum extent practicable, and that remaining unavoidable impacts will be minimized to the extent appropriate and practicable. Findings shall be based upon appropriate factual determinations, evaluations, and tests with special emphasis on the persistence and permanence of the impacts. Under this provision impacts considered individually or collectively include:
184.108.40.206.1 Impacts of pollutants on human health and welfare;
220.127.116.11.2 Impacts of pollutants on life stages of aquatic life and other wildlife dependent on aquatic ecosystems including, but not limited to,
the transfer, concentration, and spread of pollutants or their by-products through biological, physical, and chemical processes;
18.104.22.168.3 Impacts of pollutants on aquatic ecosystem diversity, productivity, and stability. Such impacts may include, but are not limited to,
loss of fish and wildlife habitat or loss of the capacity of a wetland to assimilate nutrients, purify water, or reduce wave energy; or
22.214.171.124.4 Impacts on recreational, aesthetic, and economic values.
126.96.36.199 Any applicant for a discharge permit required pursuant to 7 Del.C. Ch. 60 shall provide to the Department, as part of a complete application, a resource assessment tailored to the site performed by qualified professionals. Such assessments shall fully consider ecological functions and values in light of the policies set forth in these standards. Consideration shall be given to:
188.8.131.52.1 Potential impacts on physical and chemical characteristics of the aquatic ecosystems which shall include, but not be limited to,
substrates, substrate particulates/turbidity, water, current patterns, water circulation, normal water fluctuations, and salinity gradients;
184.108.40.206.2 Potential impacts on biological characteristics of the aquatic ecosystem which shall include, but not be limited to, fish, crustaceans, mollusks and other organisms in the food web, other wildlife, and threatened or endangered species; and
220.127.116.11.3 Potential effects on human use characteristics which shall include, but not be limited to, water supplies, recreational and commercial fisheries, water related recreation, aesthetics, parks, research sites, wildlife areas or public access areas.
5.6.2 General Provisions
18.104.22.168 In cases where natural conditions prevent attainment of applicable fresh or marine dissolved oxygen criteria, reduction in dissolved oxygen levels as a result of human activities shall be prohibited.
22.214.171.124 All point, and human induced nonpoint sources subject to control through use of best management practices or otherwise, shall be
required to remove nutrients to the extent necessary to prevent excessive growth of photosynthetic organisms.
126.96.36.199 All point, and human induced nonpoint sources subject to control through use of best management practices or otherwise, shall be
required to remove particulate matter to the extent necessary to minimize turbidity.
188.8.131.52 ERES waters shall not exhibit toxicity within aquatic habitats commonly used by native or migratory aquatic, terrestrial, and avian
species. Such habitats include, but may not be limited to, spawning sites, nursery areas, forage areas, and migratory pathways.
184.108.40.206 ERES standards shall not apply in excavated waters. All other appropriate criteria shall remain in force for these waters.
220.127.116.11 The ERES criteria set forth in Section 5.6 supplement all other applicable requirements of these standards for ERES waters.
Nothing in Section 5.6 relieves or reduces the obligation of any person to comply with other requirements of these Standards, federal or state laws and regulations.
5.6.3 Pollution Prevention
18.104.22.168 Existing Sources: For the purposes of this Section, an existing source shall be defined as a discharge for which a permit has been
issued by the Department pursuant to 7 Del.C. Ch. 60 prior to January 1, 1991. In the case of a water body designated as ERES waters pursuant to Section 3 of the Standards, the Department shall not issue or reissue a permit for an existing source unless the applicant demonstrates a utilization of all economically feasible and reasonably available waste minimization practices and technologies, and the lack of feasible alternative production processes and disposal options.
22.214.171.124 The provisions of Subsections 126.96.36.199, 188.8.131.52, and 184.108.40.206 shall apply to existing sources on January 1, 1996, or upon adoption
of a Pollution Control Strategy as provided in Section 220.127.116.11, whichever occurs first. In either event, the provisions of Section 5.6, including all requirements of the Pollution Control Strategy shall apply to existing sources.
18.104.22.168 Increased or New Sources: For the purposes of Section 5.6, new sources are those discharges for which a permit has not been issued
pursuant to 7 Del.C.Ch. 60 prior to January 1, 1991, and increased sources are those discharges for which there is an increase in the mass loading of any pollutant of concern from any existing source. For the purposes of Section 5.6, pollutants of concern are the following: oxygen demanding substances (as may be measured by BOD and COD), nitrogen, phosphorous, bacteria, heat, and total suspended solids. In the case of any waterbody designated as ERES waters pursuant to Section 3 of the Standards, the Department shall not issue or reissue a permit pursuant to 7 Del.C. Ch. 60 that allows an increase in or new source of pollutant loadings of pollutants of concern unless the applicant demonstrates:
22.214.171.124.1 A need to discharge based upon a showing of the full utilization of measures, processes, methods, systems or techniques to eliminate the discharge altogether or minimize waste loadings through process changes, substitution of materials, enclosure of systems or other modifications. This can be demonstrated through the full utilization of available waste minimization practices and technologies and the lack of feasible alternative production processes and disposal options; and
126.96.36.199.2 That a proposed new discharge or any increase in loading of pollutants of concern of an existing discharge is consistent with the
Pollution Control Strategy for the basin. Prior to adoption of a Pollution Control Strategy for a stream basin no increase in loadings of pollutants of concern shall be allowed to the stream basin from a surface water discharger unless the Secretary determines that:
188.8.131.52.2.1 Such discharger offsets the increased surface water discharge of pollutants of concern within the stream basin to the maximum
extent practicable in an acceptable manner;
184.108.40.206.2.2 The increased loadings of pollutants of concern are necessary to prevent a substantial adverse economic or social impact at the
community or regional level, and 220.127.116.11.2.3 Water quality will be maintained to fully protect existing uses.
18.104.22.168 Pollution Control Strategy
22.214.171.124.1 For each stream basin designated as ERES waters pursuant to Section 3 of these standards, the Department shall develop a pollution control strategy. The strategy shall provide for the implementation of best management practices established pursuant to Subsection 126.96.36.199 of this section and shall include such additional requirements, measures, and practices as are necessary to:
188.8.131.52.1.1 Prevent the violation of water quality standards;
184.108.40.206.1.2 Protect all resources in the stream basin in a manner that allows for natural conditions to be maintained or restored; and
220.127.116.11.1.3 Assure the protection and propagation of a balanced, indigenous population of fish, shellfish, aquatic vegetation, and wildlife,
and provide for recreational activities in and on the water.
18.104.22.168.2 The strategy pursuant to this subsection shall, at a minimum:
22.214.171.124.2.1 Provide an assessment of the nature, degree, and extent of pollution to waters within such stream basin, in terms of point source
and non-point source contribution;
126.96.36.199.2.2 Identify the aspects of the stream basin which are important, unique, or sensitive from a recreational or ecological perspective;
188.8.131.52.2.3 Establish such additional indicators and criteria that satisfy the general policy and provisions established for such stream basins;
184.108.40.206.2.4 Identify the means by which ERES standards will be achieved;
220.127.116.11.2.5 Delineate, where appropriate, the specific point source effluent limits, best management practices, and other controls that will be used to achieve water quality standards; and
18.104.22.168.2.6 Indicate changes to be made to state plans for control of water pollution or resource management to assure implementation of the strategy.
22.214.171.124.3 The Department shall assure the opportunity for public participation in the development of the strategy required pursuant to this
subsection and shall provide for public review and comment on the strategy in accordance with 7 Del.C. §6010.
126.96.36.199.4 The Department may, to the extent it deems appropriate, provide technical assistance to local governments in developing and
implementing the strategy required pursuant to this subsection.
188.8.131.52.5 The Department shall, to the extent it deems appropriate, pursue and coordinate implementation of any strategy developed pursuant
to this subsection through priority application of its resources to ERES waters through its regulatory and non-regulatory programs.
184.108.40.206.6 The Department may, in accordance with 7 Del.C. §6010, adopt and require the use of specific combinations of methods, practices,
and technologies which it deems to be most effective for controlling, reducing, or removing waste loadings to ERES waters. Such requirements
shall be based upon the application of good engineering and environmental science practices and principles, achieve a high degree of
reliability, and be appropriate for the categories of activity.
220.127.116.11 Best Management Practices
The Department may adopt, pursuant to 7 Del.C. §6010, best management practices for selected sources of pollution to ERES waters.
Best management practices identified by the Department pursuant to this subsection shall provide a standard for the control of the
addition of pollutants which reflects the greatest degree of pollutant reduction achievable including, where practicable, a standard
requiring no discharge of pollutants.
14 DE Reg. 1392 (06/01/11)
6.0 Regulatory Mixing Zones
The following requirements shall apply to regulatory mixing zones:
6.1 Applicability: In instances where the Department determines, based upon engineering calculations or field studies, that complete mix
(as defined herein) of effluent with its receiving water is not expected to occur, the Department may allocate a designated portion of the
receiving water to provide for mixing of the effluent and the receiving water. This area shall be defined as a regulatory mixing zone and shall
be determined on a case-by-case basis taking into account critical flows, outfall configuration and receiving stream characteristics.
A mixing zone will not be allocated in instances where the Department determines that complete mix of effluent and receiving water occurs
at the point of discharge, in which case, the critical flows as provided in Section 7 shall be applied in determining if the applicable criteria are met.
6.2 Location: Regulatory mixing zones shall not impinge upon areas of special importance, including but not limited to drinking water supply intakes, nursery areas for aquatic life or waterfowl, approved or conditional shellfish areas, or heavily utilized primary contact recreation areas. Zones shall not be located in such a manner as to interfere with passage of fishes or other organisms. Shore-hugging plumes should be avoided to the maximum extent practicable. In areas where multiple discharges are located in proximity, overlapping discharge plumes may occur. In such instances, the size limitations derived under Section 6.4 may be reduced to preclude acute toxicity in the overlap areas, or to ensure an adequate zone of passage for fish.
The permit in question needs further classification, clarification and significant public process.
Regards Gregg W.Rosner