Allen Harim defends plan to truck wastewater to Harbeson plant

Allen Harim Foods wants a change in a condition imposed by the Sussex County Board of Adjustment on its Millsboro poultry deboning plant, but residents say the board should not waver.

A public hearing on the company's request took place Aug. 20.

In May, the board approved a special-use exception for the deboning operation at the site of the former Vlasic pickle plant. That decision was not finalized until the board's findings of fact were released July 10, when the company filed its new application.

On Aug. 8, eight members of Protecting Our Indian River have filed a lawsuit in Delaware Superior Court against the board and the company asking the court to invalidate the approval.

Included in the findings was a condition that an upgraded spray-irrigation system must be operational before the facility could open. That condition was reiterated by assistant county attorney Jamie Sharp at the start of the Aug. 20 hour public hearing.

Attorney disputes findings

Allen Harim attorney Robert Gibbs said the findings posted July 10 did not reflect what was discussed and finalized during the public hearing and the board's affirmative vote on the special-use exception.

He said in his interpretation, the board endorsed the applicant's plan to truck 40,000 gallons of treated wastewater daily to the company's Harbeson wastewater treatment facility until an upgraded spray-irrigation system in Millsboro was operational.

Company officials could not give a timetable for construction of an upgraded system, Gibbs said, because there is no way to gauge how long it will take the Department of Natural Resources and Environmental Control to issue permits. Construction of the plant could be completed before the permits are issued.

He said until the new spray-irrigation system is operational, the company would have to truck its wastewater. Gibbs said the company agrees that DNREC trucking permits must be issued before the plant can be operational. Five to six trucks a day would be required.

Allen Harim Senior Director of Operations Everett Brown said DNREC hauling permits could be issued by Sept. 24.

Gibbs reminded the board that a mix of spray irrigation and wastewater trucking has always been part of the plan because there are several variables – including weather conditions – that make spray irrigation impossible.

“There is no difference if they truck wastewater to a state-of-the-art facility per a DNREC permit and waiting for two years for a spray irrigation system to be in place,” Gibbs said. “Forcing them to wait only penalizes Allen Harim. The condition did not arise logically out of the findings.”

Residents who testified during the hearing applauded the board for requiring the condition. Lew Podolske, who lives in nearby Possum Point, told the board they it did a good job putting restrictions on the company.

He said there are a lot of variables surrounding the application. He said no one has seen plans for an upgraded wastewater system, and no permits have been issued. Podolske said the only way to ensure the company upgrades its system is to keep the condition in place. “You need to keep the pressure on them. Once it's up and running, the pressure will be off,” he said.

“It's an appropriate condition that is well supported by the record,” said resident Charlotte Reed.

No timetable for permits, construction

Pushed for a timetable, Gibbs said it's impossible to gauge how long the permitting process would take, especially if opponents request public hearings. Appeals are also possible, he said.

Brown said the process could take as long as two years.

“The central issue of this application is discharge of wastewater and a state-of-the-art system that will have no discharge into the stream. Forty-thousand gallons is not a big burden on 29 acres for spray irrigation. That's good news, right?” he asked.

Allen Harim plans to renovate 50,000 square feet of its 450,000-square-foot Millsboro facility on Pinnacle Way for deboning, packaging and shipping about 2 million pounds of chicken per week in a one-shift operation. Processed chicken for deboning would be trucked from Allen Harim's Harbeson processing plant.

Reuse of wastewater proposed

Brown said since the special-use exception was approved, the company has explored a process that would reuse as much as 80 percent of wastewater from the plant. “It would be cleaned up to drinking water standards and we would reuse it,” he said.

He said if that path is taken, it could add more time to the permitting process. “But this delay could be beneficial,” he said.

“This would cut spray irrigation significantly, if not completely,” Gibbs said. “Even if it takes longer, the end result will be better for the environment. With better technology the people in opposition should applaud Allen Harim for taking the high road.”

Several residents questioned the legality of presenting new information concerning the wastewater system without submitting information for the record.

“This is the first time we've heard of this,” said resident Keith Steck. “Introduction of a new approach warrants a new application. It's not just a modification.”

“We will consider that,” said board Chairman John Mills.

Attorney: No mistake by board

Attorney Andrea Green told the board that the applicant was telling them they were in error. “Allen Harim is not pleased with that condition, and they are saying you that you made a mistake. But that condition was placed specifically in the record.The decision by the board is something Allen Harim is bound by,” she said.

Green is representing the groups Protecting Our Indian River in Millsboro and Keep Our Wells Clean in Milton.

Green said a review of the audio of the May 7 public hearing contains discussion by board members about trucking and spray irrigation.

In addition, Green said, the company is under no obligation to upgrade its wastewater system once trucking permits are issued. “They could just keep trucking and trucking,” she said.

Assistant county attorney Sharp reminded Green that the company would have to comply with all DNREC regulations mentioned in the findings of fact.

Podolske said there are unresolved traffic issues because the company's traffic impact study does not include the 50 people who currently work at the headquarters and does not include the proposed truck traffic for hauling wastewater.

Maria Payan, a consultant with Socially Responsible Agricultural Project, disputed the proposed number of gallons of wastewater that would be trucked saying it could be as much as 15 times higher. Allen Harim attorney Gibbs said the 40,000-gallon number was accurate.

Payan said with more wastewater, the game would change with more trucks passing by two schools. “Your duty is to protect the public,” she told the board.

At times, the 2-1/2-hour hearing was contentious as chairman Mills repeatedly reminded those testifying to comment only on the matter before the board.

The board closed the record and voted to table the matter to its next meeting at 7 p.m., Monday, Sept. 10, in the county administration building.

Grassroots group files lawsuit against board, company

Eight members of the grassroots group Protect Our Indian River have filed a lawsuit in Superior Court against the Sussex County Board of Adjustment and Allen Harim Foods LLC.

The group is asking the court to invalidate a special-use exception granted by the board to Allen Harim for a poultry deboning facility in Millsboro.

“The board failed to compile sufficient information and failed to provide members of the public a reasonable opportunity to be heard, thereby failing in its duty to conduct a full and fair public hearing. As a result, the decision is illegal and should be overturned,” the lawsuit states.

Among reasons for overturning the decision, attorney Andrea Green said despite diligent efforts by opponents prior to the March 19 hearing to secure all information and studies that were presented by the applicant, members of the public had no opportunity to review them to make comments or rebut what Green called misleading, inadequate or inaccurate information.

Green alleges the board did not consult with appropriate and available agencies on questions of public health and impact on waterways and residents, which is required by code. No contact was made with the Delaware Department of Health and Social Services, Division of Public Health, she wrote.