By Glenn Rolfe

GEORGETOWN — Although a March 17 public hearing by Sussex County’s Industrial Revenue Bond Committee — scheduled to address a bond-issuance request by Bioenergy Development Group DE LLC — was posted March 10, no one offered their comments.

Then, on April 27, County Council approved the committee’s recommendation for issuance of up to $60 million in solid-waste revenue bonds, earmarked for financing an upgrade to Bioenergy Innovation Center, south of Seaford.

That bond approval came a week after council unanimously approved Bioenergy’s conditional-use application for the center, which will incorporate anaerobic digestion and augment BDC’s current composting operation at the former Perdue AgriRecycle facility.

The digester process, which can accommodate upward of 220,000 tons of poultry waste per year from local farmers and processors and create renewable energy/natural gas, drew heavy opposition as the conditional-use proposal weaved through hearings by the county’s Planning & Zoning Commission and council.

The day of council’s April 27 meeting, Sussex Health and Environmental Network co-founder Maria Payan sent an email to the county and to media, challenging placement of the bond issue on council’s agenda.

“This item needs to be taken off the agenda for today’s council meeting. Proper notice was not given,” stated Ms. Payan. “This process must be sent back for a public hearing that involves the public process with reasonable public notice. This item must be taken off the agenda and re-advertised, as well, as the hearing, which violated reasonable notice.”

Ms. Payan added, “These comments are being submitted on behalf of SHEN, a grassroots group of citizens, protecting the environmental health of Sussex County, who live and work throughout the county.”

Sussex County officials contend that notice for the public hearing by the IRBC — held to meet Internal Revenue Service requirements — was proper.

Notice for the March 17 hearing was posted March 10 in two locations on the county website — on the calendar and in the legal notices section — and also at the County Administration Building on The Circle in Georgetown.

“The requirements of the IRS public hearing were met,” said Sussex County Finance Director Gina Jennings, chairwoman of the IRBC. “The requirement for the federal tax-exempt public hearing was that we post it on our website. Per our bond attorney, we posted it in two places on the website to make sure it met the federal requirements in Section 147 of the Internal Revenue Code of 1986.”

Additionally, Ms. Jennings said the federal government requires just one public hearing on the tax-exempt bonds.

“However, there was public comment available at the April 27 meeting,” said Ms. Jennings, noting that one caller did phone to talk about Bioenergy before the council voted later in that meeting.

During its gathering March 17, the IRBC — composed of County Administrator Todd Lawson, County Attorney Everett Moore Jr., County Economic Development Director Bill Pfaff and Ms. Jennings — voted 4-0 to recommend approval by council.

The public hearing that day drew no comment from residents — neither in council chambers nor by phone. It was held the day after council’s hourslong hearing on Bioenergy’s conditional-use request.

“It is interesting that not a word was said about this, knowing there was all this opposition, and they approved it the day after the CU. There were hundreds and hundreds of comments of opposition to this (the day prior),” said Ms. Payan. “You know how many people were in the room, when this got done with (the IRBC’s) ‘reasonable’ notice? Zero in the room and zero on the phoneline. You know if people knew about this they would have been jammed up in this room.”

Greg Layton, organizer of Food & Water Watch Delaware, issued the following statement after council’s bond-issuance approval:

“(April 27’s) vote confirms one of our worst suspicions — that taxpayers will subsidize the cost of this polluting facility, all to assure venture capitalists a ready profit. The hundreds of residents who expressed public opposition to the biogas scheme should have been considered in the decision to issue the tax-exempt bonds, which are limited in supply, to fund the very project they opposed. Gov. John Carney must stop this project in its tracks and direct the Department of Natural Resources and Environmental Control to deny Bioenergy DevCo its pollution permits.”

At the March 17 hearing, Ms. Jennings said the “county will have no financial liability for the bonds” and the “issuance of the bonds will accomplish a public purpose, as defined in our ordinance.”

“The approval from the County Council and administrators illustrates the full faith and trust of Sussex County in our Bioenergy Innovation Center project,” said Peter Ettinger, Chief Development Officer for BDC. “This authorization allows us to issue private activity bonds that are tax-exempt for Federal tax purposes. The County is not obligated to repay any principal or interest on the debt, which will be solely the obligations of Bioenergy Devco.”

“The total of up to $60 million from the proceeds of the future bond will finance a portion of our construction costs at the Bioenergy Innovation Center and will be funded by the capital markets. While the total amount is $60 million, the bond is expected to be issued in two tranches based on a phased construction schedule,” Mr. Ettinger said. “We are thrilled about our long-term partnership here and our commitment to the Sussex County community.”

The application was reviewed by the county’s bond counsel, and the project was confirmed to qualify for tax-exempt bond financing, she said.

Per Sussex County’s Industrial Revenue Bond Program, the project must do one of the following:

• Tend to maintain and provide gainful employment within and for the people of the county.
• Aid, assist and encourage the economic development or redevelopment of the county.
• Maintain, diversify or expand the employment-promoting enterprises within the county.

The Bioenergy project is expected to create 12.5 new jobs for ongoing operations and 50 to 60 jobs during construction, Ms. Jennings said.

Noting the immense opposition at hearings to the anaerobic-digester proposal, Ms. Payan maintains that, in this case, there was not “reasonable” notice.

“If almost 300 people sent in comments, and then, nobody was at the (IRBC) hearing, in person or on the phone, I think the public had a right to know and at least participate at the hearing,” she said. “If you keep the hearing out of the public, I don’t think that is reasonable. If it was reasonable, somebody would have seen it — somebody. None of us knew about it.”

Furthermore, Ms. Payan stated that the “notice is not on the state calendar listed on TEFRA (Tax Equity and Fiscal Responsibility Act of 1982) notices. It was listed on the county calendar as a meeting. The audio does not announce it is a hearing until the actual vote. It is introduced as a meeting.”