Alert 677: DNREC celebrates Freedom of Information in Delaware

The DNREC is responding to FOIA requests with demands for “signed, notarized” affidavits.
Creating more little “Metachems” all over Delaware
Freedom of information, or freedom to dump coal ash?


March 16th is “ Freedom of Information Day.”  This week is also “Sunshine Week.

Delaware’s Freedom of Information Act (FOIA) says:

“It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.”

What’s the status of Freedom of Information in Delaware?  After many years of chipping away at the Delaware FOIA, at the behest of the University of Delaware, the banking industry, and other special interests with things to hide, the pendulum has swung a bit the other way.  The General Assembly, always exempt from the FOIA, has been partially included in it.  A few other opening-up bills are wending their way through the General Assembly, championed by Sen. Karen Peterson, Rep. Greg Lavelle, and others.

On the other hand, Governor Jack Markell, who said in his Inaugural Address, Jan 21, 2009: “I pledge that my administration will be more transparent and accountable than any that have come before,” has proven quite secretive and controlling.

Sometimes we have called a state office and been told that permission from the Governor’s office was required to talk to us.  (They always eventually have.).  When we call some parts of the DNREC we are often switched immediately to the “Public Affairs” office and have to negotiate direct contact with technical staff.  A FOIA request dealing with “Integrated Resource Planning” was responded to with a claim of “Executive Privilege” from one of Markell’s lawyers.  Markell has never answered a letter about his administration’s promotion of a “biomass” burner at the BASF plant in Newport.

On March 15th we received the following in connection with a FOIA request we are pursuing:  “It seems that in order for you not to incur charges for the information, I will need a signed, notarized affidavit sent to me.  It can be mailed to 89 King�s Highway, Dover, DE 19901.”

Green Delaware has probably sent dozens if not hundreds of FOIA requests to the DNREC in the past fifteen years, and never encountered such a demand.  We questioned it and got this response:

I checked with our legal team and below is the information given to me:
The notary requirement is inherent, within the definition of affidavit. Black’s Law Dictionary defines ‘affidavit’ as follows:
“A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.”

DNREC public affairs manager Melinda Carl insists this is normal.  So, dear reader, what say you?  Have you made a FOIA request and been asked for a notarized affidavit?  If so, please let us know (

Creating little “Metachems” all over Delaware.

The underlying issue we are asking about is one that the DNREC is probably not motivated to have aired:  DNREC is allowing coal ash to be dumped all over without, apparently, even keeping track of where it’s going:

Ashworks is using fly ash in Flowable fill for construction projects throughout Delaware, New Jersey and Pennsylvania.” (email received from Bryan Ashby March 4, 2010)

Green Delaware responded:

The reports are from “Ashworks” are vague, such as:
“Flowable Fill New Castle, DE 11.00”

This is not enough information, obviously, to identify the site.  Is more information available such as address, responsible party, date(s) when the ash was placed, type of use…..?

Coal ash, of course, is a dangerous waste loaded with toxins.  Eventually, all these “construction projects” will need to be located and tested for groundwater contamination and other health hazards.  Cleanups will be needed.   So Delaware is accumulating yet more future environmental liabilities with its eyes closed.

The DNREC has been using it’s influence, along with the coalers and utilities, to keep the US Environmental Protection Agency from more effectively regulating coal ash.

DNREC  has also sought to weaken it’s own dump siting regulations (Alert 667: Delaware DNREC seeks to weaken waste regulations).  We called the Solid Waste folks to find out what action had been taken on this and got the now-usual runaround.

Speaking of Metachem, in the news this week, the key issue for Green Delaware, as it has been for years, is that the DNREC/EPA approach, in spite of tens of millions of dollars spent, will not either clean up or contain the sources of groundwater contamination.  This guarantees that eventually people will drink the Metachem toxins.

Here is a recent Green Delaware letter regarding a proposal to move a heavy industrial facility with a history of spills and leaks into the supposedly-protected Coastal Zone.

ACTION: Let DNREC Secretary O’Mara ( collin, 302.739.9000)and Governor Markell (, 800.292.9570) know you want real freedom of information in Delaware.  Freedom of information,  not freedom to dump coal ash.

Leave a Reply

Your email address will not be published. Required fields are marked *