UPDATE: Sussex P&Z shuts down composting operation

The Sussex County Planning and Zoning Commission has ruled that the owner of Blessing Greenhouse and Compost has not complied with imposed conditions and must cease his operation immediately.

On Feb. 26, Tim Willard, the applicant's attorney, filed for a rehearing before planning and zoning on behalf of his client. Willard said his client was denied due process because the commission failed to provide notification or place on the agenda that termination of the application was a matter to be discussed.

In addition, he said, the public record had been left open to allow for testimony from Department of Natural Resources and Environmental Control scientist Brian Churchill, and to allow the public or applicant to respond. “There was no opportunity to respond,” Willard said.

At their Feb. 22 meeting, commissioners voted 4-0 on a motion presented by Commissioner Kim Hoey Stevenson who said owner Bruce Blessing testified at a Feb. 8 public hearing that he had not complied with all conditions placed on approval of his application by the commission and county council.

Specifically, she said he had accepted 10,000 to 15,000 tons of wood and 20,000 tons of yard waste that was not all used in the composting process and sold as wood fiber as part of the company's recycling process.

The condition stated he was forbidden from accepting any material not directly used for composting. Among the conditions was an option for the commission to terminate the conditional-use application for noncompliance with any condition.

The vote came after commissioners heard testimony from Churchill that Blessing was making progress in remediation of the site with no violations.

Blessing operates a composting, flower-growing and yard-waste recycling business along Draper Road near Milford. County officials approved a conditional-use application for Blessing to continue operation of the business with several strict conditions, including cleanup of a 100,000-ton pre-compost pile that had been accumulating on the property for years. He was given a four-month deadline starting in September to remove the pile or post a $1 million bond while continuing to remove material from the property.

The original pile is what has attracted the ire of nearby residents who say it smells and attracts flies that plague their homes. So far, about 50 percent of the pile has been removed, Blessing said.

Blessing told the commission at its Feb. 8 hearing that he could have the pile removed by the middle of June.

“Who will clean up the site now?” asked Commissioner Doug Hudson.

“It looks like the county will get stuck with it,” replied Commissioner Bob Wheatley.

Wheatley asked if commissioners had the latitude to give Blessing more time to clean up the site. “It seems harsh to shut him down tonight. Is there a way to not cut him off by the knees?” he asked.

Assistant county attorney Jamie Sharp said the commission did not have that option based on wording in the conditional-use application.

Commission Chairman Marty Ross said the commission’s hands were tied because the application could be terminated for noncompliance.

Ross said the conditions were imposed to give Blessing a path to clean up the site.

“He was to clear the pad and clean up the site and start new in an enclosed operation,” Hoey Stevenson said.

“The applicant testified he had not adhered to the conditions,” Ross said. “We can't change the ordinance. It's not a matter of opinion.”

Sharp said the conditional use allowed planning and zoning commissioners – not county council – to terminate the application or allow another public hearing.

Yard-waste collection stopped

Blessing said as of Feb. 26, his company will no longer accept yard waste, which is affecting 3,000 customers. “This shows a pretty good faith effort,” he said.

In addition, he said, the cleanup of the pre-compost pile may be halted as well.

“I'm not seeking litigation. I'm seeking something amicable and concentrate on cleaning up the compost pile when we can,” he said. “I don't want to cost the citizens of Sussex County any money.”

Blessing said he is seeking a compromise from the county. “We will do whatever it takes to comply and protect our business,” he said.

Blessing said he was in business for nearly a decade without any notice from the county that he was in violation. “Most of what we do falls under agriculture,” he said. “We are a right-to-farm state, so the resolution of this will be tied to agriculture.”

He said he's not sure of the status of his farming and greenhouse businesses.

Blessing said he questions a process that allows officials to terminate a business. “I have plans for a new $5 million facility, and then someone just comes in to say it's over,” he said.

He said the conditional use was flawed. “It could end up potentially costing my business lots of money,” he said. “What's unprecedented about this is the number of mistakes that have been made.”

Churchill: Application is flawed

Prior to the vote, DNREC scientist Churchill spoke to commissioners and answered questions concerning the Blessing application.

Churchill was matter of fact when he said he's seen no violations, and Blessing was making progress toward complying with a 2014 DNREC Secretary's Order, which has no timeline for cleanup.

He said groundwater and surface water quality in the area is not impacted by Blessing's composting operation. He said nearly all material on bare soil has been removed.

Churchill has made several inspections of the site over the past eight years.

He told commissioners the conditional-use application was flawed, adding he raised concerns even before it was approved. He said he offered testimony during county council's public hearing, but none of his comments were reflected in the application passed by council.

In addition, he said, he attempted to reach county officials via email but did not receive any responses.

He said he was most concerned with the conditions requiring Blessing to clean up a large pre-compost pile within four months in accordance with DNREC requirements.

Blessing had asked county officials to amend that condition and extend the deadline. Blessing had filed another conditional-use application asking to amend five of the conditions.

“That's ambiguous language, and I voiced concern when I first saw it,” Churchill said. “DNREC has no timeline in place as a requirement. We question what DNREC requirement is being referred to.”

“We don't know your requirements – you do,” Ross said. “The conditions are not tied to the Secretary's Order. I believe the four months was proffered by the applicant. If there's any misconception, it's on your part, not ours. Our intent was not to add to the piles because there is enough on the site already. We want to make sure he's following the rules.”

Biosolids slow down process

Churchill said it's unrealistic to expect the material in the pre-compost pile – as well as other material – to be removed, sold and trucked off the property even by the beginning of summer. Part of the reason, he said, is that some of the material contains biosolids left over from sewage sludge that Blessing once accepted at the site.

In 2011, Churchill said, Blessing was ordered to stop accepting biosolids and hatchery waste as the piles continued to grow and odor problems increased.

He said strict EPA regulations must be followed when dealing with biosolids to convert them to material safe for public use. He said nitrogen must be added and the piles must be heated to a minimum of 131 degrees and turned over and mixed five times.

He said all material must be processed this way because it's mixed together and can't be segregated.

“A lot more material is leaving the site than is coming in,” Churchill said. “Yard waste is another conversation.”

He said DNREC does not regulate yard waste. “I'm not going to disagree that there is plenty of material out there,” he said.

‘Progress is taking place'

“It's not happening as quickly as we'd like to see, but progress is taking place,” Churchill said. “The problem has been the sheer amount of material on the site,” he said, adding there should have been restrictions on how much material was allowed to be accepted. He said most of the material on the site accumulated in 2010 to 2011.

Churchill said in the future, more dialog between county and state officials is needed. “We need a better understanding, because what you have is not clear to anyone at DNREC,” he said.

Ross said county officials and residents have dealt with years of frustration in efforts to clean up the facility. “In land use, we deal with compatibility. When you see the large piles and have the smell, it becomes a sticky issue that we've come to years after the fact,” he said.

Hear an audio of the planning and zoning commission's vote at:

https://sussexcountyde.gov/sites/default/files/audio/Other%20Business_19.MP3