Environmental Appeals Board dismisses Zak case

In an auditorium speckled with both supporters – some holding signs that read “Hear Bill Zak,” and “Coal Ash is Toxic” – and DNREC officials and employees, Bill Zak of Citizens for Clean Power made his case to the state’s Environmental Appeals Board.

His appeal focused on former Department of Natural Resources and Environmental Control (DNREC) Secretary John Hughes permitting a Phase II landfill adjacent to the Phase I landfill at the Indian River Power Plant near Millsboro.

Zak’s arguments in appealing that decision concentrated on the health risks of coal fly ash and the potential monetary and lifestyle risks should a flood event occur. But, ultimately, despite a day of arguments, the board ruled 5-1 in favor of Indian River Power Plant and DNREC in granting their motions to dismiss Zak’s appeal.

After hearing opening arguments, going into executive session and deciding they would defer the motions to dismiss on the basis that Zak did not have standing, the appeals board did allow Zak to present his argument on its merits; but, ultimately, they still ruled in favor of Indian River Power Plant and DNREC’s dual motions to dismiss. Those motions were based on arguments that, pursuant to Title 7 of DNREC regulations, Zak was not “substantially affected by an action of the Secretary” and did not have a “unique interest.”

Zak, only having learned of the need to show unique interest days before the hearing, had argued that his interests were, in fact, unique, because his recreational activities, such as kayaking and sailing, were risky due to water contaminants; his economic interests were at risk because the onset of a flood event would have a direct affect on his waterfront property values; and his health was at risk because for half a year, the particulate matter from the power plant drifts directly above his house.

He also presented into evidence exhibits supporting his claim for standing, including a record of the Citizens Advisory Committee recommendation to the Center for the Inland Bays board to appeal the Secretary’s decision; maps showing the location of the landfills in relation to sediment ponds as it pertains to flood risk; tables from Shaw Environmental, which had been hired by DNREC to study contamination at the old Burton Island ash landfill site; DNREC’s own Title 7 Air Quality and Management regulations; Title 7 of the Delaware code regarding industrial landfill regulations; the Coastal Zone permit for the plant; letters (dated June of 2008 and May 2008) from former EPA scientist and Citizens for Clean Power member John Austin, asking pointed questions about the safety of the landfills; a letter from Steve Callanen of the Sierra Club; and copies of questions from public hearings.

Timothy Houseal, legal counsel for Indian River Power Plant, argued that Zak’s concerns were public health concerns and not unique to him. Bob Phillips, deputy attorney general representing DNREC and Acting-Secretary David Small, agreed.

“Substantial effect does not equal the public at large,” said Phillips. “I don’t believe the regulation meant any person who doesn’t like the decision may appeal to the board. I think it is appropriate and quite reasonable to dismiss his claim.”

Houseal added that what was before the board was a permit modification, not the granting of a permit. “Prior approval of Phase II was grandfathered in,” he argued. “With respect to Phase II, we have state-of-the-art technology, and everything we are doing exceeds all applicable solid waste regulations.”

Zak read his argument, stating that “Neither the Secretary, nor DNREC staff, has ever bothered to explain how granting this order is not in direct violation of DNREC’s own and other state violations.”

He cited as examples that, in granting the 1976 exception to the Coastal Zone Act for Phase I, the state planner made the permit conditional on former owner Delmarva Power and Light’s (DPL’s) development of a “safe disposal of coal ash for said unit because the ‘state planner considers environmentally safe disposal of coal ash of paramount importance.’”

In his argument, Zak also pointed to Title 7, Chapter 1106 – Particulate Emissions from Construction and Handling, which reads, “No person shall cause or allow stockpiling or other storage of material of transport to or from a storage facility in such a manner as may cause a condition of air pollution.”

He also asked why the permit is not a violation of DNREC’s solid waste handling regulations, which state that “No new cell of a industrial landfill shall be located in a area that such solid waste would at any time be deposited in an area that is environmentally unique or valuable.”

EAB member Gordon Wood (who is also mayor of Ocean View) asked if Phase II is considered a new cell. “Why is that not applicable?” he asked after Houseal objected to Zak’s citing of that particular regulation.

“Citing section 2.4.2, a new facility and expansion of the existing facility shall be in compliance of these regulations The entire area where Phase I and Phase II will go was permitted 30 years ago,” Houseal noted, “ says that for an expansion you have to apply for a permit modification to bring it up to current standards. And we have greatly exceeded current standards. This is not a new permit, this is a modification of an existing permit.”

Houseal repeated that point many times over – that the issue at hand for the board to consider was a modification of the permit, and not a new permit, and not the original permit for Phase I.

“Today, with all that we know, perhaps it would not have been sited there, but it was and it is protected by Delaware law, and this board is only looking at a permit modification.”

The board voted 5-1, with Dr. Stanley Tocker dissenting, to grant the dismissals of the case. They will issue a written statement within 90 days.

The citizens who had braved the all-day hearing only to hear that the dismissals were being granted showed their discontent with a round of boos at the reading of the vote.

Zak, although grateful that he had time to present his argument, said he had fundamental disagreements with the board and its purpose as a body.

“If I don’t qualify, then I caution that you are setting a standard so exclusionary for standing that short of someone coming in here in a wheelchair with terminal cancer... As an environmental policy review committee, I don’t understand if all you do is screen candidates before they get to Superior Court. I hope you re-do your documents so the public is fully aware of how difficult it will be to be heard. This is an absurdly legalistic exclusion.”