January 24, 2003

Hon John E. Hughes, Secretary
Delaware Dept. of Natural Resources and Environmental Control
89 Kings Highway
Dover DE

via FAX

Dear Secretary Hughes:

By now we think it is obvious that permits for “non regenerative” (that is, river-poisoning) scrubbers for Motiva cannot reasonably proceed at this time. We are writing to ask that the “air” permitting activities for “wet gas scrubbers” for Motiva be suspended, and that the public hearing begun on Jan 23rd and scheduled to continue on Jan 30th be canceled.

1. It appears from documents in our possession that DNREC has decided to issue air permits by a certain date in February regardless of the record that might be developed. This mocks the integrity of the permitting process and violates Delaware law, which states that decisions must be made based on the record developed at a public hearing.

2. The application is for a technology (non-regenerative scrubbers) that violate a Federal-State Consent Decree. The application was properly returned to Motiva by former Secretary DiPasquale on August 21, 2002, and there is no acceptable reason for the Department to be proceeding with an essentially identical application now.

3. The permit requested, if granted, would result in pollution of the Delaware River with over 200 million pounds per years of wastes including mercury, copper, and nickel. DNREC has not completed its evaluation of the consequences of this pollution and Div. Of Water Resources Director Kevin Donnelly confirmed on Jan 23 that “months” of investigation of this issue lie ahead. To proceed with an “air” permit under these circumstances also compromises the integrity of the “water” (NPDES) permitting process.

4. We discovered on Jan 23rd that additional materials had been submitted to the Div. of Air and Waste Management by the applicant (Motiva). We had already made freedom of information requests for “all” materials in the case­responses were delayed for over three months in some cases--and are obviously parties to the proceeding. Thus, Motiva, if acting in good faith, ought to have provided us copies of any new or supplemental submissions. DNREC ought to have ensured that this was done. DNREC failed to either require Motiva to do this, or to notify us directly of the new materials. Apparently, had a continuation of the hearing not been obtained, we would not have known of or seen the new submissions until the beginning of the hearing itself. It is obviously not possible for us to participate meaningfully under these prejudicial circumstances.

5. Long-established practice allows cross-examination of permit applicants by other parties and members of the public. This has often resulted in important information entering the record that would not otherwise have been brought out. Nevertheless, DNREC in recent hearings has sought to prevent the public from exercising this right, and designated hearing officer Steve Karlsen has not been willing to tell us whether we will be allowed to cross-examine Motiva.

6. Pursuant to the Delaware Freedom of Information Act we hereby request copies of all supplemental or additional materials submitted by Motiva, and copies of all memos, emails, calculations, records of phone calls, letters, or any other materials bearing on the subject application and not already provided to us. Further, we request to be notified, and to receive copies automatically, of any and all such materials as they are generated.

In conclusion, this proceeding is logically and legally and ethically compromised and it needs to stop before further damage is done. If DNREC proceeds on its apparently pre-determined path, gross, long-term damage to the Delaware River/Bay is likely. Time is obviously of the essence, and we look forward to hearing from you in a timely manner. If this letter raises any questions please contact us.

Respectfully,

Alan J. Muller, Executive Director
Green Delaware

Maryanne McGonegal
Common Cause of Delaware

Matt Del Pizzo, President
Delaware Audubon Society

John Kearney, Director
Clean Air Council ­ Delaware

Copy: 

Attorney General Brady
Members of the General Assembly
Steve Karlsen, Hearing Officer
Matt Denn, Legal Counsel to Gov. Minner

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Note: Copy of this letter was provided by Green Delaware. Green Delaware is an independent, community-based organization, working on environment and public health issues and is not affiliated with the Green Party of Delaware.  You can reach Green Delaware at 302 834-3466, greendel@dca.net, www.greendel.org.