Keep Our Wells Clean v. Department of Natural Resources and Environmental Control

SUPERIOR COURT
OF THE
STATE OF DELAWARE
E. SCOTT BRADLEY
JUDGE
Kenneth T. Kristl, Esquire
Environmental & Natural Resources
Law Clinic
Widener University Delaware Law
School
4601 Concord Pike
Wilmington, DE 19803
1 The Circle, Suite 2
GEORGETOWN, DE 19947
March 19, 2020
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
Re: Keep Our Wells Clean, et al. v. Department of Natural
Resources and Environmental Control, et al.
Case No. S19A-07-002-ESB
Dear Counsel:
This is my decision on the appeal filed by Appellant Keep Our Wells Clean
(“KOWC”)! of the Environmental Appeals Board’s decision affirming the decision
by the Secretary of Appellee Department of Natural Resources and Environmental
'Eight individuals are also Appellants.
Control (““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 an
application 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.
ANSRWRE
ANSRWRYF, 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, be
capable 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.
ANSRWRI 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 the
changes 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 | to Phase 2; (2) build one 92 million
gallon storage lagoon in Phase | 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 Mounding
Analysis 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
ANSRWRE 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 | storage
capacity from 62 to 90 million gallons, delaying construction of the wastewater
treatment 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 Decision
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.
Summary of Hayes’ Testimony
Hayes (1) was familiar with ANSRWREF 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 to
require 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 higher level before it was sent to
ANSRWREF.
Summary of Grobbel’s Testimony
Grobbel testified about some of the issues in the permitting process, but his
testimony was stopped because the EAB concluded that the evidence presented to
the EAB would be limited to proper site selection and design, and not operation of
the wastewater treatment plant.
The Board’s Summary of the Evidence
On the issue of whether the 2014 Regulations required Artesian to submit a
HSR and SWAR, the EAB noted the following testimony from Hayes:
(1) Hayes was involved in DNREC’s issuance of the 2013 and 2017 permits
and knew what they allowed;
(2) Hayes knew that the regulations changed between the issuance of the
2013 and 2017 permits and he was involved in the development of the new
regulations;
(3) Hayes stated that the site selection process was not part of the
amendment to the 2013 permit and based on the proposed changes there was no
need to apply all of the 2014 Regulations to the amended application;
(4) Hayes reviewed the soil report submitted with the 2013 permit and
concluded that no additional soil work was necessary;
(5) Hayes said that the requirements for a HSR and SWAR apply to new
applications, not existing ones;
(6) Hayes said that subsections 6.3.1.1.14 and 6.5.3.3.1 of the 2014
Regulations allow DNREC to amend a permit;
(7) Hayes said the volume of water to be sprayed on the fields was within
the scope of the investigations that were previously performed; and
(8) Hayes said that DNREC had the functional equivalent of a HSR and
SWAR even though they were not required for an amended permit.
The EAB’s Legal Conclusions
The EAB reached, in part, the following legal conclusions:
The Board agrees with DNREC and Artesian’s
contention that, as a matter of law, the 2014 regulations
do not apply to the amendment to the existing
construction permit. DNREC concluded that a permit
amendment is subject to the regulations that were in
effect at the time of the initial permit application unless
the changes are significant. In this case DNREC
determined the changes are not significant enough to
require the application to submit a new permit
application. DNREC’s determination is not
unreasonable or clearly wrong.
The Board agrees with Artesian’s contention, and
finds as a matter of law, that it submitted the required
plan, specifications and design engineer report
contemplated by subsection 6.3.1.1.14. Lastly, the Board
finds as a matter of fact that the Sussex County zoning
approval allowed for a regional wastewater facility to
serve multiple sources and that Sussex County was
aware of the amended construction permit application
and reaffirmed its conditional use approval. The Board
finds as a matter of law that the Secretary had sufficient
evidence to so conclude.
10
Standard of Review
This Court’s review of administrative board decisions is limited to whether
the decision is supported by “substantial evidence” and is “free from legal error.”
“Substantial evidence is that which a reasonable mind might accept as adequate to
support a conclusion.”? It is not the Court’s role to “weigh the evidence,
determine questions of credibility or make its own factual findings.’ The Court
“merely determines if the evidence is legally adequate to support the agency’s
factual findings.”
Regulatory Construction
When interpreting the language of the 2014 Regulations, I have to engage in
regulatory construction, the functional equivalent of statutory construction. “The
primary goal of statutory construction is to ‘ascertain and give effect to the intent of
the legislature.””® Intent is determined by the plain language of the statute, and absent
*State v. Calder, 2019 WL 5381918, at *2 (Del. Super. Oct. 16, 2019).
*Liberty Mut. Ins. Co. v. Silva-Garcia, 2013 WL 4507847, at *4 (Del. Super. Aug. 22, 2013).
‘Lewis v. State Dep’t of Agriculture, 2007 WL 315359, at *3 (Del. Super. Jan. 31, 2007).
“Id.
° Acadia Brandywine Town Ctr., LLC v. New Castle Cty. 879 A.2d 923, 927 (Del. 2005) (citing
Dir. Of Revenue v. CNA Holdings, Inc., 818 A.2d 953, 957 (Del. 2003)); see also Norman J.
Singer, Sutherland Statues and Statutory Construction, §78:3 (7° ed. 2015) (“The key to
interpreting a ... statute is to ascertain and effectuate legislative intent as expressed in the statute.
The statute’s language is the best and most reliable index of the statute’s meaning ....”).
11
ambiguity, “there is no room for judicial interpretation and ‘the plain meaning of the
statutory language controls.’””’ Indeed, “[i]Jn the absence of any ambiguity, the
language of the statute must be viewed as conclusive of the legislative intent. The
judicial role is then limited to an application of the literal meaning of the words.”®
Absent ambiguity, the Court cannot look to legislative history to determine the
meaning of the legislative enactment.’ There is one other rule of statutory
construction that is applicable. The expression of one thing but not another is”
interpreted to mean that omitted items were not meant to be included.'°
Discussion
The difficult task in this case is to determine if DNREC correctly processed
amendments to a 2013 construction permit that was approved under the 1999
Regulations where those amendments are now governed by - at least to some
” PHL Variable Ins. Co. v. Price Dawe 2006 Ins. Trust, ex rel. Christiana Bank and Trust Co. ;
28 A.3d 1059, 1070 (Del. 2011); see also Norman J. Singer, Sutherland Statutes and Statutory
Construction, §46:1 (7" ed. 2015) (“the rules of statutory construction favor according statutes
with their plain and obvious meaning and courts assume the legislature knew the plain and
ordinary meanings of the words it chose to include in a statute.”).
* Grand Ventures, Inc. v. Whaley, 632 A.2d 63, 68 (Del. 1993) (internal citation omitted).
” Arnold v. Society for Sav. Bancorp., Inc., 650 A.2d 1270, 1287 (Del. 1994) (“A court should
not resort to legislative history in interpreting a statute where statutory language provides
unambiguously an answer to the question at hand.”); Pellicone v. New Castle Cty., 88 A.3d 670,
675, n.21 (Del. 2014).
'° See, e.g., Walt v. State, 727 A.2d 836, 840 (Del. 1999), citing Hickman v. Workman, 450 A.2d
338, 391 (Del. 1982).
12
extent - the 2014 Regulations.'’! Artesian argues that it did not have to start the
approval process for a wastewater treatment system from the beginning because
(1) it already had a permit to construct a wastewater treatment system, and (2) the
changes that it wanted to make to its already-approved wastewater treatment
system were not significant enough to require any further hydrogeologic and soil
evaluations. DNREC and the EAB agreed with Artesian. KOWAC argues that
Artesian had to start the process over because the 2014 Regulations require it. The
2014 Regulations do not, in my view, address this situation with the clarity that is
required. The 2014 Regulations make great sense if you are starting the permitting
process after they became effective, but that is not the case here. ANWRWREF was
approved by DNREC under the 1999 Regulations. Artesian already has a
construction permit that DNREC approved pursuant to those regulations.
Nevertheless, the 2014 Regulations are what DNREC had to work with in
processing the amendments to Artesian’s construction permit. The resolution to
''The EAB appeared to state that the 2014 Regulations did not apply to Artesian’s proposed
amendments to its already-issued construction permit. Although the EAB decision is not a
model of clarity, I find that the fairest view of the EAB’s ruling, when you consider the issues
before it and its factual findings, is that the EAB found that the sections of the 2014 Regulations
requiring a HSR and SWAR do not apply, that Artesian complied with Section 6.3.1.14.1, and
that the changes that Artesian sought were not substantial enough to require further
hydrogeologic and soil evaluations. (The EAB’s reference to Section 6.3.1.1.14 instead of
6.3.1.14.1 appears to be a typographical error.)
13
the parties’ arguments turns on the language of three sections of the 2014
Regulations: Sections 6.1, 6.5 and 6.3.1.14.1.
Large System Approvals
The 2014 Regulations govern Small Systems and Large Systems for treating
and disposing of wastewater. ANSRWRF is a Large System. Large Systems are
governed by Section 6.0, et seg. Section 6.1 states, in part, as follows:
A permit must be obtained from the Department
prior to the construction, operation, maintenance or
repair of any on-site wastewater treatment and disposal
systems with daily design flow rates of > 2,500 gallons.
There are, of course, many things you would have to do in order to get a
permit for a Large System. You would, if you were starting the process from the
very beginning, have to submit to DNREC an HSR and aSWAR. An HSR anda
SWAR are discussed in Sections 6.2.3 and 6.2.4, respectively, and are required by
Section 6.5.
HSR
An HSR is defined by the 2014 Regulations and “means a report that
characterizes the hydrogeologic properties present on a given site through direct
observations.” Section 6.2.3 states that an HSR “must be submitted to the
Department for review and approval for large on-site wastewater treatment and
disposal systems.” Hydrogeologic or hydrogeology is an area of geology that
deals with the movement and distribution of groundwater in the soil.
SWAR
SWAR is defined by the 2014 Regulations and “means a report that
characterizes the potential nutrient impacts of a wastewater treatment system to a
site from future development through background data and computer modeling.”
Section 6.2.4 states that a SWAR “must be submitted to demonstrate that nutrient
performance standards for wastewater are being met at the post treatment location
of a large on-site system or through natural attenuation processes prior to reaching
the closest receiving surface water body in order to comply with surface water
quality standards.”
The information that must be included in an HSR and a SWAR, as well as
the manner in which that information must be collected, are discussed in detail in
the appropriate sections of the 2014 Regulations. Although those two reports are
apparently of great consequence, they were not discussed in much detail before the
EAB. Indeed, the only notable difference between the Soil Investigation Report
and Hydrogeologic Investigative Report submitted by Artesian in 2002 and what
an HSR would require now involves the number of test borings done. Artesian
previously did 13 test borings over 1652 acres. An HSR would require around
15
160 test borings. The test borings are required to gather data to assess the
suitability of the agricultural lands for the disposal of wastewater. I understand, of
course, that getting more information could conceivably change the analysis, but
that is purely speculative at this point.
The requirement to obtain an HSR and SWAR is found in Section
6.5, which states as follows:
In order to obtain a permit to construct and operate
an on-site wastewater treatment and disposal systems
with daily flow rates of > 2,500 gallons, a permit
application must be submitted to the Department for
review and approval. A permit application will not be
reviewed by the Department until the SIR, HSR and
SWAR have been reviewed and approved by the
Department.
The Applicability of Sections 6.1 and 6.5
If Sections 6.1 and 6.5 apply to Artesian’s proposed amendments to its
already-issued construction permit, then Artesian would have to provide an HSR
and SWAR because they are clearly part of the application to obtain a permit for a
Large System. However, Sections 6.1 and 6.5 do not nicely fit this case because
Artesian already has a construction permit. Artesian argues that Sections 6.1 and
6.5 do not apply because it already has “obtained” a construction permit and the
changes it wants to make to its permit are not substantial enough to justify starting
16
the process over from the very beginning. Artesian also argues that Section 6.1
and 6.5 instead only apply to applications for new permits. KOWAC argues that
Sections 6.1 and 6.5 apply even though Artesian already has a construction permit.
I conclude that Sections 6.1 and 6.5, by their clear language, do not apply.
Section 6.1 states that “a permit must be obtained from the Department prior to the
construction, operation, maintenance or repair of any on-site wastewater treatment
and disposal system...” Section 6.5 states that “[i]n order to obtain a permit to
construct and operate on-site wastewater treatment and disposal system” you must
submit an HSR and a SWAR to the Department. Artesian had already “obtained”
a construction permit for Phase 1, making it unnecessary for Artesian to start the
process from the very beginning and obtain yet another construction permit. Since
I have concluded that Sections 6.1 and 6.5 do not apply, then the obligations to
submit an HSR and a SWAR do not apply either. Thus, the question becomes
what regulatory and analytical steps one has to follow to process changes to an
already-issued permit. Changes to construction permits are addressed in Section
6.3.1.14.1.
17
Construction Permit Changes
Section 6.3.1.14.1 states:
A construction permit application, plans and
specifications and design engineer report with applicable
fees must be submitted to the Department if the
construction permit has expired or changes have
occurred.
Artesian argues that it has complied with 6.3.1.14.1. Artesian’s 2013
construction permit for Phase 1 has not expired. However, Artesian does want to
make changes to its construction permit, and the 2014 Regulations permit a
construction permit holder to make changes to the permit if “changes have
occurred.” Artesian has submitted to DNREC an amended Design Engineer
Report and plans and specifications and paid the applicable fees in connection
with its application for an amended construction permit. KOWAC argues that
Section 6.3.1.14.1 means that an applicant who has gotten a construction permit
under Sections 6.1 and 6.5 and wants to make changes would have already
submitted an HSR and a SWAR as part of its original application. Thus, KOWAC
reasons, any hydrogeologic and soil studies that are needed would already have
been done. KOWAC’s argument, of course, assumes that the original application
was filed after the 2014 Regulations became effective, but that is not the case here.
18
I certainly understand KOWAC’s argument, but it describes a situation that is not
before us. Artesian and DNREC are dealing with a wastewater system that crosses
different regulations enacted at different times. I conclude that Section 6.3.1.14.1,
by its clear language, allows Artesian to seek an amendment to its existing
construction permit. Section 6.3.1.14.1 sets forth a process that must be followed
if “changes have occurred.” Artesian’s situation has changed and it wants to
process those changes by submitting the required documentation and having those
changes evaluated by DNREC. Unfortunately, the 2014 Regulations do not define
or address what a “change” either means or, more importantly, what Artesian has
to do in order to obtain the necessary DNREC approval.
Processing the Changes
Faced with this, the Secretary, and ultimately the EAB, concluded that the
2014 Regulations did not require Artesian to submit a HSR and SWAR with its
application for an amended construction permit because the changes that Artesian
wanted to make to ANSRWRF were not substantial enough to require Artesian to
conduct additional hydrogeologic and soil studies. Put another way, the Secretary,
based on the nature of Artesian’s proposed changes and the hydrogeologic and soil
studies done in 2002, concluded that no further environmental work was
necessary. The EAB agreed with the Secretary’s conclusion. I conclude that the
19
EAB’s decision is a correct statement of the applicable law and is supported by
substantial evidence in the record. The following are the changes that Artesian
sought, and the rationale followed by the Secretary, and ultimately the EAB, in
approving them.
The Wastewater Treatment Plant
Artesian sought to move construction of the wastewater treatment plan from
Phase | to Phase 2. It would still be built on the same 75 acre parcel, but would be
built later. The only change was one of timing. The Secretary and EAB found
that there would be no adverse environmental consequence for doing this. Indeed,
the Secretary found that the delay in construction would reduce the impact of the
effect of construction on the amount of the land disturbed by the construction.
That conclusion is supported by the record. Artesian has approval to build a
wastewater treatment plant. Whether it is built now or later is irrelevant from an
environmental viewpoint.
The Lagoons
Artesian sought to build one 90 million gallon lagoon in Phase 1 instead of
two lagoons totaling 67.5 million gallons. The larger lagoon was necessary to
handle the increased flow of treated wastewater from Allen Harim. This lagoon
would still be on the same 75 acre parcel of land and the 90 million gallon lagoon
20
would be less in size than the three lagoons totaling 159 million gallons for the
entire project. The Secretary and the EAB found that there would be no adverse
environmental consequence for doing this. The only effect was to increase the
land disturbance related to the construction of the larger lagoon initially. That
conclusion is supported by the record. The fact that Artesian is building more
storage capacity sooner rather than later is irrelevant from an environmental
viewpoint.
The Allen Harim Wastewater
Artesian sought to accept up to 1.5 to 2.0 million gallons per day of already-
treated food processing wastewater from Allen Harim instead of 1.0 million
gallons of untreated domestic wastewater. The Secretary and EAB concluded that
Allen Harim’s already-treated wastewater would not contaminate the groundwater
used for the drinking supply because of DNREC’s public access standard, which is
the highest standard that one must meet in order to spray treated wastewater on
agricultural land. Put another way, in order to spray Allen Harim’s already-treated
wastewater on agricultural land, Artesian and Allen Harim would have to meet the
appropriate standard for doing so. Moreover, the treated wastewater would be
sprayed on lands that DNREC long ago deemed suitable for spray irrigation. The
volume from Allen Harim is still less than the contemplated treatment and disposal
21
of 3.0 million gallons of treated wastewater for a site that was, according to Hayes,
suitable for the disposal of 6 to 7 million gallons of wastewater per day.
Moreover, also according to Hayes, Allen Harim would continue to treat its
wastewater to a standard higher than is required for spray irrigation on agricultural
fields. As I noted before, Allen Harim treats its wastewater to a level high enough
to allow it to be discharged directly into a waterway. The Secretary increased the
total spray acres from 608.9 to 762.7 acres, presumably to allow for the increase in
wastewater.'* Hayes was well aware of the characteristics of the site and he knew
that Allen Harim’s food processing wastewater had different components than
domestic wastewater, but did not feel that the differences were significant enough
to require a new permit. The Secretary’s conclusions are supported by the
testimony of Hayes and there does not appear to be any evidence in the record to
contradict the Secretary’s conclusions. The Secretary found that there would be
no adverse environmental consequence for the changes sought by Artesian in this
regard. Indeed, the fact that Allen-Harim’s wastewater is to be disposed of on
agricultural lands instead of directly into a waterway is arguably better because the
land further “treats” the wastewater.
One of the fields - Field D, consisting of 90.7 acres - may not be used until it is approved by
Sussex County as a conditional use.
22
Conclusion
I find that the Secretary and EAB were correct when they found that the
2014 Regulations do not require Artesian to start the process from the beginning
because it already had “obtained” a construction permit for Phase 1 of
ANSRWRI. I further find that the Secretary and EAB were correct when they
concluded that the changes Artesian sought to make to its already-issued
construction permit were not substantial enough to require further hydrogeologic
and soil studies. The changes involving the timing of the construction of the
wastewater treatment plant, sizing of the lagoons, and spraying of treated food-
processing wastewater were all well within the previously-approved parameters
for ANWRWRE. The evidence in the record supports the conclusions by the
Secretary and EAB that the proposed changes would have no effect on the
drinking water. KOWAC’s argument that Artesian’s proposed changes to its
construction permit require it to start the process from the beginning, even though
Artesian already has a construction permit, ignores the plain language of the 2014
Regulations and the evidence in the record indicating that the proposed changes
would have no effect on the drinking water in the area. There are certainly some
changes to an existing construction permit that would justify additional testing.
For example, an increase in disposal of wastewater beyond what the agricultural
23
lands had been approved for would arguably require more analysis. However, that
is not the case here. The agricultural lands to be used in this case have been
extensively studied and found suitable for spray irrigation. Quite simply, the
poultry industry has been in Sussex County for a long time, and so has the
spraying of treated food processing wastewater from a poultry plant on
agricultural lands. The record in this case supports the findings and decisions by
the Secretary and EAB. There is little to nothing in the record to support
KOWAC’s arguments. Accordingly, I affirm the Environmental Appeals Board’s
decision.
IT IS SO ORDERED.
Very truly yours,
pa
E. Scott Bradley
ESB/tl
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