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Green Delaware Action Alert #90

Senate Bill 33:  the continuing incinerator threat, 
and the Bogus Community Committee

Port Penn, DE.  March 28, 2001. Delaware Senate Bill 33 is entitled "AN ACT TO AMEND TITLE 7 AND TITLE 29 OF THE DELAWARE CODE WITH RESPECT TO NOTIFICATION OF ENVIRONMENTAL RELEASES, FACILITY PERFORMANCE, AND ESTABLISHMENT OF THE COMMUNITY INVOLVEMENT ADVISORY COUNCIL." 17 senators and 20 representatives are listed as sponsors (none sought Green Delaware's views). This bill also seems to represent Gov. Ruth Ann Minner's campaign positions regarding more disclosure of environmental releases ("right to know"). The author is Sen. David McBride and a committee hearing on the bill will be held on March 28, 2001, at 3:00 in Dover, DE. (Green Delaware will offer some testimony if the chair, Sen. McBride, allows us.) Because this bill proposes significant changes we review it at some length. Many of its provisions aren't entirely clear-we hope to get some clarifications. SB 33 has several sections (the full text can be found at: http://www.legis.state.de.us/Legislature.nsf/?Opendatabase):

"Community Involvement Advisory Council and Community Ombudsman"

Not in order, we begin with this section, which requires some history to understand. When Delaware banned incinerators in the Coastal Zone (SB 88, 1988), NDREC was already scheming (via the "Development Advisory Service") with a company (Philpower) they knew wanted to build an incinerator in the Coastal Zone. Secretary Nick DiPasquale admitted, at a Citizen Summit in Wilmington, that DNREC intended to issue permits to Philpower, pretending it would not be an incinerator. This was prevented by public opposition. When Philpower tried to locate outside of the coastal zone, SB 280 effectively banned large incinerators throughout Delaware. The key thing to know is that this great victory for the environment and public health was regarded as a *defeat* by DNREC, the Carper administration, "economic development" organizations, and many legislators who supported the bill publicly. Steps were begun to ensure that the people would not win again. The basic strategy, as we understand it, is to work with permit applicants, helping them contact and defuse potential community opposition, before the formal permitting process starts. Thus, communities are to hear only one side of the story-the applicants' side. (Philpower was defeated partly because communities got to hear the truth about the pollution that would result. The Philpower numbers were very different from the Green Delaware numbers).

DNREC set up a "Community Involvement Advisory Committee," loaded with people from 2 Chambers of Commerce, DuPont, other industrial lobbyists, and a couple of token community representatives-one a state employee. The "environmental community" was represented by the Sierra Club and the League of Women Voters. (The "qualifications" of these organizations: their representatives met with Philpower Corporation when it was searching for an incinerator site, were told of communities being targeted, and did not warn them.) The Bogus Community Committee had a fancy consultant from DC, but pointedly excluded activists with a track record in fighting undesirable polluters. For example, nobody who fought Philpower was included. The Bogus Community Committee was run by Andrea Kreiner, head of the Business and Permitting Services section of DNREC-the group charged with making it as easy as possible to get permits. Green Delaware's impression is that the "Advisory Council" proposed by SB33 is in the same mold. We are certain that independent community representatives, and knowledgeable and independent environmental advocates would not have a strong presence. Similarly, as long as environmental regulation is regarded are a tool of "economic development," it's likely that an "ombudsman" would represent polluters rather than communities.

Reporting "releases"

The first may beef up requirements for reporting to state officials and the public of "environmental releases," defined as "any spillage, leakage, emission, discharge, or delivery into the air or waters or on or into the lands of this State...." This could help, as both the Delaware Dept of Nat. Resources and Environmental Control [DNREC] and regulated facilities have a history of concealing or not reporting spills, leak, and upsets. COMMENT: "emission," and "discharge" into our air and water is allowed by permit in hugh amounts, so we don't yet know what this really means. Notification is required to DNREC, County and municipal officials, and "any community or civic group or individual that makes itself known in advance to the person responsible for the release...." COMMENT: How are we to know in advance?

"Environmental Information System"

Another part states: "The Department [DNREC] shall develop an Environmental Information System that will include general information about facilities and sites under the Department's
regulatory jurisdiction ... [it] shall include information on all such facilities and sites related to permitting requirements, emissions and discharge monitoring and reporting data, compliance
inspections, violations and enforcement actions. The System shall provide the public with information that indicates when a facility has been inspected, what violations are detected, when the facility comes into compliance, and any enforcement action that results from violations at the facility." COMMENT: The devil is in the details. DNREC almost always presents information suggesting that only violations are a problem. That legally permitted emissions are OK. This is misleating because the discharges due to violations are usually minor compared to the "permitted" discharges. (Regulators, but the logic of their business, almost "have" to think this way, else they would be admitting they aren't protecting the environment.....) If the mandated "information system" actually tells readers what is coming out of the facility (that is how many pounds per year of everything) it could be helpful.

"environmental performance statement"

Another section requires some larger facilities to: "... prepare and issue, on or before October 1, an annual environmental performance statement to communities within which their facilities are located. ... The environmental performance statement shall include such information as may be prescribed by the Department, including, but not limited to, permits held by the facility, emissions and discharges from their operations, any environmental violations or enforcement actions taken against the facility by federal, state or local regulatory authorities and the name and contact information of a facility representative. The statements may also include any voluntary activities undertaken by the company to reduce environmental impacts from the facility, including emission reduction or water discharge projects, waste reduction or recycling initiatives, or such similar environmental improvements undertaken within the previous year or planned for the near future (i.e. next five years). COMMENT: This sounds like materials already sent out by politically savvy polluters such as Ciba in Newport. Our concern would be that there would be a lot of "how great" we are propaganda, and a misleading or incomplete picture of environmental and health impacts. 

"chronic violators"

Another section sets up provisions for identifying and penalizing "chronic violators." "The Secretary, in conjunction with a committee of stakeholders including representatives of Delaware environmental organizations and industry to be appointed by the Secretary, shall define criteria and establish a process for determining when a facility or regulated party should be declared a chronic violator by virtue of its inability to maintain compliance with the State's environmental permits, laws, regulations or requirements." COMMENT: The idea is valuable, but such a "committee of stakeholders" is certain to be dominated by industry, and DNREC seldom fully uses the authority it already has.

"Development Advisory Service"

This is a interagency group, coordinated by DNREC, that meets with potential applicants to advise them of what permits they might need and how to get them. The meetings of this group can provide an "early warning" of potential projects.
 


Let us know what you think. 

Email us at 

GreenDel@dca.net

or contact
Alan J. Muller, Exec. Director
P.O. Box 69
Port Penn, DE 19731
302-834-3466 Voice
302-836-3005 FAX

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This page was last updated on  April 13, 2001.
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