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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Supplemental Comments On Proposed Anaerobic Digester Project  Posted: January 8, 2016

32 Years of Protecting Kentucky’s Environment

Mme. Chair, members of the Board of Zoning Adjustment, my name is Tom FitzGerald and I reside at 1600 Dundee Way, Louisville, Kentucky 40205. I am here this evening in my capacity as Director of the Kentucky Resources Council, Inc. to ask that you deny the request for a conditional use permit for Jefferson Anaerobic Digester #2.

Let me begin by thanking you for again scheduling the hearing as an evening hearing, in order to allow folks who could not take off from work, to be here to express their concerns.

My supplemental testimony addresses two issues: the first, whether the proposed activity is allowed in this zone, and second, what are appropriate setbacks from sensitive receptors such as residential properties, when siting an Anaerobic Digester plant of this throughput and size.

To recap my legal argument from the initial hearing, Chapter 4.2 of the Land Development Code lists the categories of conditional uses. Among them is 4.2.37, under which this applicant seeks approval. 4.2.37 is captioned “Non-emergency Generator and Non-accessory Alternative Energy System.”
From the description of the project that has been provided, the facility will not be a “non-emergency generator,” since that term is defined as “[a] power generator used to provide supplemental power to a user requiring additional and/or sustainable power not normally available to the user from the local public utility. This type of generator does not include those used for emergency situations such as a loss of power due to unforeseen circumstances.”

This facility is not a power generator – instead, it proposes to convert organic wastes to methane that would be introduced into the LG&E system for sale rather than for use as a supplemental source of on-site power.

Nor does this facility fit under the definition of a “non-accessory alternative energy system,” which is defined as “[a]ny facility or installation such as a windmill, hydroelectric unit or solar collecting or concentrating array, which is designed and intended to produce energy from natural forces such as wind, water, sunlight, or geothermal heat, or from biomass, for on-site or off-site use. The off-site use shall not be for public usage, which would be deemed a Public Power Plant.”

The proposed facility is not producing energy; rather it is generating and cleaning a biogas that would be introduced into the LG&E gas utility pipe system for sale and end use either for combustion in a gas turbine creating energy in the form of electricity or by combustion for space heating. It is clear from the distinction drawn in the definition of “alternative energy system,” which treats off-site public usage as a Public Power Plant, that the “alternative energy system” contemplated in the regulation is limited to alternative systems creating electricity, since the definition of a public power plant is “[a]n electrical power generation facility that, regardless of fuel or energy source, is operated by a public utility or independent power producer and whose primary function is the provision of electricity to the electrical distribution system or transmission grid.”
Since the project does not meet the criteria for a CUP under Section 4.2.37, the CUP application should be denied.
Instead, this facility falls under Section 4.2.42 as a “potentially hazardous or nuisance use” because of the accompanying hazards such as fire, explosion, noise, dust, or the emission of smoke, odor, or toxic gases.” The process will reduce the volume of solid waste by converting organic material into a gaseous form, and thus falls under the category of reducing wastes, which can only be located in an M-3 District and not an EZ-1 District. Additionally, the project will be creating a soil amendment that is a fertilizer and fertilizer can only be manufactured in an M-3 District.

In any case that comes before this Board, you have a number of considerations in Chapter 11 of the Land Development Code against which you review a request for a CUP. The overriding consideration should be one of the incompatibility of the proposal with the residential areas nearby, in terms of height, bulk, scale, intensity, traffic, noise, odor, and appearance. While this proposal may make business sense to Heaven Hill, if it can off-load the stillage to Nature’s Methane for less expense than disposing of it in the MSD system, and to Nature’s Methane, if they can generate enough gas to secure a contract that will provide renewable energy credits that they can sell and make enough from the acceptance of Heaven Hill’s and others wastes, the proposal simply does not make sense for the residents who live nearby. Many of the problems that arise under nuisance law and in planning and zoning controversies occur where there is an abrupt shift from a heavy industrial to a residential land pattern, and the imposition of an industrial footprint of this size and nature within 120 feet of residential properties is a recipe for future problems.

I have had several conversations with the proponents of this project, and have conducted an extensive review of the literature concerning the Monsal/GE advanced anaerobic digestion technology that the proponents seek your approval to construct on the property. After such review, and in consideration of the location, the scale, mass, and potential off-site impacts of the project, it is clear that the proximity of the facility to nearby homes makes it an unsuitable location.

A comparison of the location of the only other anaerobic digester that any of the principals in Nature’s Methane have managed – the two digesters at the Fair Oaks Farm in Fair Oaks, Indiana, which NM COO Mark Stoermann formerly managed, and that of the four proposed biodigesters at 17th and Maple, reflects a stark distinction between the sparsely populated surroundings in Fair Oaks (with the closest neighbors being two homes, each located some 2,000 feet away from the facility) and the 17th and Maple location, where there are some 23 homes within 800-feet of the facility. The Staff Report notation that there are “some” residences to the north-east understates the abrupt transition from industrial to residential use across the street and alley, and it is the lack of buffer to attenuate any odors, noise, or other operational problems, that makes this location inappropriate. The applicant’s representative can try to minimize the significance of the residential properties by calling it a “minor pocket of residential use,” but those homeowners and renters are just as entitled to the peaceful use and enjoyment of their properties, and to the protections intended in the Land Development Code as if they resided in Indian Hills or my Highlands neighborhood.

No process of converting organic wastes to biogas is without potential problems, whether from failed or clogged biofilters, from leaks or spills during product transfer, upsets in the digestion process, or from leaks of odorants that will be intentionally introduced into the gas prior to feeding the gas into the LG&E system. With every vent or stack to the outside air, with every valve, seal, and flange, there is a potential for odors, and according to the information supplied by Nature’s Methane in response to questions that I posed, there are several points in the process where venting to outside air of methane and other products and byproducts of the process could occur, including a flare for flaring off surplus gas and a discharge stack associated with a biofilter for odor control.

Neither state nor local zoning regulations have in place specific regulations governing industrial-scale anaerobic digesters. Until adequate standards are in place to assure that all inputs of waste and outputs of products, byproducts, and impurities that are removed from the generated biogas are fully accounted for so as to prevent off-site impacts to other land uses, the requested Conditional Use Permit should, respectfully, be denied.
Several times, both at public meetings and before this Board, mention has been made of the extensive use of AD plants in Germany and the United Kingdom. Over the holiday break, I reviewed the standards adopted by the Environment Agency for siting an AD unit of this size and throughput in England or Wales. Standard Rules SR 2012 No.11, a copy of which is attached to these comments, provides that for units treating over 100 ton(nes) of waste per day, including Waste Code 02 07, which are wastes from the production of alcoholic beverages (including those from spirits distillation, spent grains, hops, and whiskey filter sheets and production sludges), the minimum distance from the nearest sensitive receptor is 200 metres, or 656.168 feet. The “nearest sensitive receptor” is definedto mean “the nearest place to the permitted activities where people are likely to be for prolonged periods. This term would therefore apply to dwellings (including any associated gardens) and to many types of workplaces. We would not normally regard a place where people are likely to be present for less than 6 hours at one time as being a sensitive receptor. The term does not apply to those controlling the permitted facility, their staff when they are at work or to visitors to the facility, as their health is covered by Health and Safety at Work legislation, but would apply to dwellings occupied by the family of those controlling the anaerobic digestion facility.”

Thus, if the project proponents wished to site an AD unit for processing of stillage in England or Wales, they would need a setback that is over 5x greater than that provided for the protection of residential properties, and even less for the workplaces near the facility which also qualify as “sensitive receptors” is employees are present 6 hours / day.

With respect to the other nation repeatedly referenced by the project proponents as widely employing the AD technology, Germany, the Federal Immission Control Act requires that there be a “boundary protection zone” around agricultural biogas plants. The width of the protection zone is set at 300 meters (or 984 feet) for sealed containers and 500 meters (1640 feet) for non-airtight solutions. (Verify this based on Lucas’ research).

With respect to the Mayor’s support for this project, this project would have a marginal impact on the Mayor’s solid waste diversion goals, and a marginal impact on methane release, since the waste solids are currently treated by an AD process at the MSD Morris Forman Plant and the Outer Loop Landfill, which receives the MSD residuals, has methane capture and control.

Thank you for the opportunity to present these supplemental comments.

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