The Environmental Protection Agency is investigating Delaware’s Department of Natural Resources and Environmental Control for alleged civil rights violations.
The EPA accepted a complaint last week to investigate if DNREC failed to provide adequate public participation opportunities to the residents near Bioenergy Devco’s Bioenergy Innovation Center – an anaerobic digester and methane gas production and gas refinery project, which DNREC recently issued permits to expand.
The complaint filed in December 2022 by the Socially Responsible Agriculture Project, Sussex Health and Environmental Network, ACLU of Delaware, the Delaware Poor People’s Campaign, and the Delaware State Conference of Branches of the National Association for the Advancement of Colored People, originally included Sussex County, but the EPA says the county is not part of its investigation, although the county could face a compliance review.
The complaint says the public learned of this project only by chance, when Sussex Health and Environmental Network co-founder Maria Payan noticed it on an April 2021 agenda for the Sussex County Planning & Zoning Commission. The document says that DNREC, responding to community pressure, in late October 2021 made a general outline via email to some community members, proposing a three-step plan to conduct outreach regarding the project. This proposal contemplated a series of meetings with affected community members, yet none occurred.
Senior Counsel for the Socially Responsible Agriculture Project Eli Holmes helped draft the original complaint, and says community members requested more accessible meetings with DNREC, which never happened.
“And what they ended up doing is, instead of DNREC coming out, they actually, on the day of a public hearing, they sent a representative of the company out to the community to try to talk to people,” Holmes said. “And that’s not the same thing as having your government agency that is supposed to be looking out for the public. That’s not the same thing at all.”
Holmes says even during public hearings, closed captioning was only provided in Spanish and there were no language assistants to help non-English speakers ask questions.
The complaint says within 5 miles of the facility, 15 percent of the population speak a non-English language at home, and “many” report their English proficiency as “less than very well," “less than well,” “not well at all,” and “not well.” Approximately 411 people in that same radius are categorized by EPA as “linguistically isolated”, with Spanish and “other” Indo-European languages being spoken, including Haitian Creole.
“There is also a lot of technical information as part of this application and there wasn’t any Spanish or Haitian Creole assistance provided in trying to relay that information to the public,” Holmes said. “After some of the hearings, the company itself created some power-points that they have on their website now, information in Spanish and Haitian Creole, but that’s after the hearings. So, there are a lot of things that could have been done, in addition to just a general, stronger, environmental review overall, there were a lot of things that could have been done that simply were not.”
DNREC says in a statement that sharing information in languages accessible to the community is fundamental to DNREC’s permit process and it looks forward to providing EPA with information on its outreach efforts, which Secretary Shawn Garvin says in his order approving expansion permits, included multiple visits to the area and posting of the Public Notice and public workshop presentations on their website and mobile home park proximate to the site in English, Spanish, and Haitian Creole.
The permit approval also says virtual public workshops and public hearings offered closed captioning in over 20 languages via Zoom.
The Sussex Health and Environmental Network's Payan argues the community is already exposed to many geographically concentrated pollution sources including superfund sites, water dischargers, sources of air pollution, hazardous waste, brownfields, and toxic substances. A cluster of warehousing facilities indicates a strong presence of warehouse and truck-related traffic emissions as well.
“This project is going to bring up to 100, I think 99 trucks per day,” Payan said. “And these roads are one lane on each side. There are school buses that stop on these roads. It is in an ag residential neighborhood, it’s not in a heavy industrial like our zoning actually requires it to be, which is a whole other story in Sussex County.”
Payan adds that 97.5% of rivers and streams in Delaware are polluted, and the state is first in the country for the amount of private wells that are polluted.
DNREC approved five new permits last week for Bioenergy Devco to construct an anaerobic digestion system, a wastewater pre-treatment system, and a biogas upgrading plant, all while Payan says they knew about the complaint, but before the EPA had decided to investigate.
“For them to issue permits before it was even decided if it was going to be opened and looked into, to me that speaks volumes about how much concern they have over people’s rights,” Payan said “This is not how this process should be working. For DNREC to be trampling over people’s rights, especially those that are underrepresented, it’s appalling.”
“It’s such a loving, hard working community,” Payan said. “And they feel like they have no voice, no power, it’s really heartbreaking.”
It is unclear whether permit approval will be revoked or halted amid the investigation.
