Why Should Delaware Care?
An investigation into a Seaford-area biogas plant, and its potential infringement on nearby communities’ civil rights, has concluded. The state environmental agency has reformed its community engagement processes as a result, but advocates say more can be done.
The Delaware Department of Natural Resources and Environmental Control reached an agreement to reform its future outreach and permit review processes in historically excluded communities, following a 2022 civil rights complaint against the agency.
DNREC entered into an “Informal Resolution Agreement” with the U.S. Environmental Protection Agency (EPA) on Jan. 17, concluding an EPA investigation into DNREC’s permitting process for a bioenergy project near Seaford.
DNREC allegedly failed to inform and engage the surrounding, largely low-income communities during the permitting process for the expansion of a Bioenergy Devco biogas facility, which would convert chicken waste into natural gas, according to the complaint.
The surrounding communities are mostly composed of Latino, Haitian and Black residents, as well as people with low-English proficiency.
The American Civil Liberties Union of Delaware, alongside four other environmental justice groups, filed the December 2022 complaint against DNREC and Sussex County, alleging discrimination against the surrounding communities of color.
DNREC took steps to remediate and reform their permit review process before and during the investigation, which was formally concluded with the agreement. The agency hired the first environmental justice coordinator in the state and developed a screening tool for demographics and language to determine if additional outreach and translation services are needed in communities.
As a result of the agreement, the EPA will not issue a decision with findings on the merit of the complaint.
Advocates applauded DNREC’s efforts to help communities in the future, but underscored that little was accomplished to rectify the harm already done to communities surrounding the biogas plant. All the required permits for the plant have already been approved and issued by DNREC.
“It really doesn’t make whole the community that didn’t get included,” said Mike Brickner, executive director of the ACLU of Delaware. “We’re disappointed about that, but we are hopeful about the new policies in place for the future.”
The biogas project is expected to haul about 250,000 tons of chicken waste into the area annually, raising pollution, health and traffic concerns among advocates.
“DNREC has made progress in community engagement, but we’re committed to doing more to ensure all voices are heard,” Nikki Lavoie, DNREC chief communications officer, said in a statement. “We’ll continue working with the EPA to enhance our efforts, including new grievance procedures and a language access plan, while building on the work we’ve already done.”
Bioenergy Devco did not respond to a request for comment.
How the issue began
The biogas project is an expansion of Bioenergy Devco’s Bioenergy Innovation Center near Seaford. The expansion, first announced more than four years ago, includes the construction of an anaerobic digestion system, a wastewater pretreatment system and a biogas upgrading plant.
The Bioenergy Development Company assumed ownership of the plant in 2020 after it was owned and operated by Perdue for roughly 20 years as a pellet and compost plant.
The biogas plant is expected to be expanded in neighborhoods where residents already suffer from health issues from existing pollution and have limited technology to access information about the project, according to the complaint.
After years of protesting the expansion, advocates who filed the complaint expressed worries about pollution, truck traffic and the safety of transporting potentially flammable gas near communities.
The communities include two mobile home parks, which are largely composed of Latino and Haitian immigrants, whose residents have limited access to broadband internet and low English proficiency.
The complaint requested that DNREC and Sussex County reopen the comment period for the permits and restart the permitting process for permits with environmental and health assessments.
DNREC and the EPA did not reopen the permitting process as part of the agreement, but did implement a variety of other recommendations in the complaint.
“It’s kind of bittersweet,” said Maria Payan, executive director of Sussex Health and Environmental Network, one of the organizations that filed the complaint. “It’s not really just whether this operation is going in. Nearby residents still have not had a chance to have an impact.”
DNREC already making improvements
As a result of the agreement, DNREC implemented a language access plan for residents with limited English proficiency and a new grievance procedure process. People can now file discrimination complaints with DNREC and the agency is required to turn over the information to EPA’s Office of External Civil Rights Compliance six months and one year after the agreement took effect.
A grievance complaint log will be maintained for public viewing, but there have not yet been any complaints filed, according to DNREC.
DNREC will need to report request logs for oral interpretation and written translations by community members, alongside staff training for the language access plan, to EPA’s civil rights office for a year.
The complaint was filed in December 2022 and the EPA accepted it for investigation nearly a year later in September 2023. In between those dates, DNREC implemented suggested changes in the complaint and reworked their permit review process to better serve communities around developments.
The following are some of the changes that DNREC implemented:
- Hired Katera Moore, the first environmental justice coordinator in the state;
- Developed a screening tool to analyze community demographics to determine whether additional outreach and/or translation services are needed;
- Adopted an environmental justice compliance policy and trained staff to carry it out.
The hiring of Moore has been a “very positive” result of the complaint process, improving communication between DNREC and local communities, Payan said.
“We really need someone to be that point of communication and point of concern for some things that really detrimentally can affect people’s health,” she added.
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