Online petition seeks to reverse state decision about Allen Harim poultry proposal

By Tony Windsor

In the span of about two weeks over 1,200 people have signed a petition developed by a local environmental group to halt the construction of a poultry processing plant that they claim is detrimental to the health of the Indian River.

The petition, sponsored by Protecting Our Indian River, seeks to have Gov. Jack Markell and state legislators stop the Allen Harim Food LLC from buying the land and building that formerly housed the Vlasic Pickle plant in Dagsboro, and converting it into a poultry operation that it says will employ about 700 workers. Vlasic closed in 2012, resulting in the loss of about 400 jobs through layoffs.

According to the online petition at, &the health, welfare and the recreational use of the Indian River and the citizens of Delaware is at stake.  The property is already a Brownfield/Superfund site that is contaminated with Hexalvant Chromium and other hazardous chemicals.

Protecting Our Indian River says that potential discharge from the plant through wastewater is likely to contaminate the Indian River and its tributaries. The discharge of 12 million gallons of wastewater from cleaning chickens a week would go into the Indian River which runs into the Rehoboth Bay and Dewey and Bethany Beach.  That along with the chance of some type of spill is not worth ruining the greatest treasure we have in Delaware  our rivers, streams and their tributaries  let alone our tourist industry, the group states in its petition.

Protecting Our Indian River claims that state officials have not reacted to concerns about the possible pollution of the Indian River, or local private drinking wells. In a plea for support from area citizens the group states: Our State Government and its representatives are not concerned about its citizens or the environment.  We need your help and support on this problem to stop the State from infringing on the rights of its citizens. The petition site then goes on to direct those interested in learning about the environmental concerns to visit for more information.

The proposed development site, referred to as the Pinnacle Way site, has been deemed a brownfield by DNREC and as such must undergo special evaluation before any redevelopment or reuse of the land. This is under the provisions of the federal Environmental Protection Agencys (EPAs) Brownfield Program. The program empowers states, communities and other stakeholders to develop environmentally sound ways to prevent, assess, safely clean up, and sustainably reuse brownfields.

According to the EPA, the term brownfield site means real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.

According to DNREC spokesman Robert Haynes, the Brownfield Program is important to the state. The Brownfield Program was established by the General Assembly to encourage the redevelopment of industrial sites or contaminated sites.

During a public hearing in December, conducted by Haynes for DNREC, a Brownfield evaluation of the property and subsequent plan of clean up and monitoring of the Pinnacle Way site was revealed. At the hearing, Allen Harim representative Elio Battista, Jr., of the firm of Parkowski, Guerke, and Swayze, said a Brownfield investigation was conducted on the Pinnacle Way site. The environmental consulting company of BP Environmental worked in compliance with regulations

Allen Harim sought and received certification from the Department that the site is, in fact, a Brownfield; then entered into a Brownfield development agreement, having engaged the services of the Department, a Hazardous Substance Cleanup Act certified environmental consultant, BP Environmental, Inc., Battista said.

In accordance with the statutes and regulations governing the State of Delawares Brownfield Development Program and in compliance with the Brownfield program and the applicable regulations, BP Environmental conducted a Brownfield investigation of the site which included an assessment of any actual, threatened, or perceived releases of hazardous substances. As part of the Brownfield investigation BP Environmental analyzed the concentrations of any potential hazardous substances at the site to determine whether they meet acceptable risks of land use intended by Allen Harim and background levels established by the Department.

Battista said it is the plan of Allen Harim Foods to renovate the property for a poultry processing operation. He said the property has multiple buildings, a wastewater treatment plant, a spray field and four public water supply wells. As we are aware, the General Assembly enacted the Brownfield Program because the under-utilization of Brownfields in a state operates to the economic detriment of the citizens of the state, and because the under-utilization of these sites limits employment opportunities and needlessly uses valuable greenfield resources, Battista said. It is against this backdrop that Allen Harim sought the Departments assistance in redeveloping the vacant site to an environmentally safe and economically productive facility.

Battista said the proposed Allen Harim cleanup and redevelopment of the Pinnacle Way property is a perfect fit for what the state intended for the Brownfield Program. This redevelopment will protect public health, welfare, and the environment, while at the same time yielding economic revitalization and redevelopment at the site, he said.

Battista said based on the Brownfield evaluation Allen Harim Foods believes the proposed plan for remedial action complies with the objectives and requirements of the Hazardous Substance Cleanup Act, the Brownfield Program and the applicable regulations, as well as DNREC standards.

He then requested that the state allow the site cleanup to take place and move forward with the poultry operation development.

Not deterred by the states acceptance of the Brownfield investigation and remedial action, the Protecting Our Indian River group joined forces with another environmental group, the Inland Bays Foundation, and filed an appeal with the Delaware Environmental Appeals Board, challenging the decision.

The appeal was filed by Ken Kristl, Esq. and the Widener Environmental and Natural Resources Law Clinic. The Widener Clinic provides representation and legal assistance to public interest organizations and individuals on environmental matters in Delaware and other Mid-Atlantic states.

We are seeking to reverse the order, said Cindy Wilton, a founding member of Protecting our Indian River. The remediation plan that DNREC proposed misses the mark on so many levels that they simply need to go back to the drawing board and make solid, fair, realistic plans for reviving that site.

According to the appeal, the remedial plan determined by the Delaware Department of Natural Resources and Environmental Control (DNREC) was flawed in several key elements, including:

  • The failure to characterize adequately the hazardous substances on or emanating from the site. This includes the failures to sample in areas of known or suspected areas of contamination, consider all data about the site, and determine potential and actual offsite impacts.
  • The failure to evaluate properly the risks created by the hazardous substances on or emanating from the site. This includes the failure to consider known or suspected risks at the site, develop sufficient data to conduct an adequate risk assessment, have adequate data to support the risk assessment actually conducted, and determine risks from potential and actual offsite impacts.
  • The failure to impose a remedy that reduces and/or eliminates the impacts and risks of the hazardous substances on or emanating from the site.

Citing the December public hearing, Wilton said numerous experts submitted testimony during the hearing, including Inland Bays Foundations science coordinator John Austin, a 33-year veteran of the U.S. Environmental Protection Agency.

Austin presented testimony denouncing the DNRECs proposed monitoring plan as inadequate. He said there was no testing offsite to private wells, which has been reiterated by the community and various experts as inadequate to ensure protection of water wells and public health.

Socially Responsible Agricultural Project (SRAP) member Maria Payan said the state had a chance to do the right thing in regards to the Pinnacle Way site. This was a missed opportunity by DNREC to do things the right way, she said.

Community health and environmental stability were back-burnered in favor of a quick fix that was no fix at all. This process should start again, and this time the citizens of Sussex County need to be respected and protected by its government agencies.

The appeal falls in the shadow of DNRECs firm belief that the approval of the proposed plan of remedial action for the Pinnacle Way site is final. DNREC Secretary, Collin OMara, signed the approval of the Final Plan of Remediation for Pinnacle Way Site on Christmas Eve and made it immediately effective.

In addressing the issue OMara said it is an issue of land use and who controls that use. The opposition to [Pinnacle Way Site] redevelopment as a poultry processing plant is a matter of land use control, and Sussex County government has the exclusive authority to determine if poultry production is a land use consistent with its zoning, he said.

The record indicates that the land is zoned heavy industry. The Departments [DNRECs] role is to ensure that the land is environmentally safe from contaminants for its intended use, and the Plan indicates that it will be.

OMara said while he recognizes that some members of the public would rather see the poultry plant located elsewhere, the Pinnacle Way Site is a more feasible choice.

While some public comments supported the poultry plants location elsewhere, the Department considers any Brownfield redevelopment preferable to utilizing undeveloped property, such as farmland, forestland or other open space, for the facility, he said.

Finally, the Department will have a role in any future redevelopment of the Site should the proposed use require permits for wastewater discharges, emissions into the air or for the disposal of wastes.

As required by 7 Del. C. Chap. 60, the Department will provide the public with the notice of these future permit applications and provide the public with an opportunity to comment on them.

Meanwhile, environmental groups including Protecting Our Indian River, Socially Responsible Agricultural Project and Inland Bay Foundation are hoping to use public sentiment to sway Gov. Markell and the state to reconsider the Allen Harim Foods proposal. As of Tuesday, Feb. 18, the petition has 1,232 signatures. Once 1,500 signatures are raised the petition will be presented to Markell.

More information about the appeal can be found at: and

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