Delaware Audubon and Sierra Club File Coastal Zone Appeal Regarding Delaware City Refinery

Image: Tank cars carrying oil near the Delaware City refineryJune 14, 2013 -- Delaware Audubon and the Sierra Club Delaware Chapter filed appeals with the Environmental Appeals Board and the Coastal Zone Industrial Control Board of Secretary's Order 2013-A-0020 dated May 31, 2013, concerning the Delaware City Refinery's Marine Vapor Recovery System (MVRS) for violating the Coastal Zone Act. Delaware Audubon and Sierra Club are represented in these appeals by the Widener School of Law's Environmental and Natural Resources Law Clinic.

The Delaware City Refinery has widely publicized its railroad “loop track” for the import of crude oil to the refinery and to barge lower-cost Bakken and Canadian tar sands crude to its other refinery in Paulsboro, NJ. The refiner also is in an acquisition mode, looking for other available refineries that may benefit from the synergies associated with obtaining discounted oil by rail. However, this infrastructure has been constructed outside of the refinery's footprint of non-conforming use, a boundary established by the original Coastal Zone Act for industries already operating in the area.

The Coastal Zone Act, signed into Delaware law in 1971 by Governor Russell Peterson, restricts industrial development in an area that extends 150-miles long and 2-miles inland and specifically prohibits bulk product transfer facilities.

The appeals filed on June 14 allege that the crude oil-transfer operation being built at the refinery--as allowed under the order ot the Department of Natural Resources and Environmental Control (DNREC) Secretary's Order--violates the Coast Zone Act because:

  1. the crude oil transfer operation is a bulk product transfer facility prohibited under the CZA;
  2. the crude oil transfer operation cannot escape this prohibition as a nonconforming use under the CZA; and/or
  3. to the extent the crude oil transfer operation falls within a nonconforming use, it requires a CZA permit because it is an expansion or extension of that nonconforming use.

The Order's failure or refusal to recognize these legal requirements of the CZA are the legal errors at the heart of the appeals.

“The formal process of Coastal Zone review and compliance was not conducted for the Delaware City Refinery's MVRS unit or the crude oil transfer operation of which it is a part” said Delaware Chapter of the Sierra Club Chair John Irwin. “We notified DNREC in our comments for the public hearing for this permit on May 8 that the process of Coastal Zone review should be respected prior to issuing this permit. Secretary O'Mara should not be surprised that we are filing this appeal” added Dr. Amy Roe, Conservation Chair with the Delaware Sierra Club.

Delaware Audubon Society President Mark Martell said, “The Delaware Audubon Society continues to be guided by the principles of the Coastal Zone Act passed by the late Russ Peterson, a former president of the National Audubon Society. We are deeply concerned by the failure of DNREC to uphold this law, and believe it may set a lasting precedent that undermines protection of the Coastal Zone and the bay shore region for Delawareans. We cannot stand on the sidelines and allow the erosion of decades of efforts to protect our environmental resources.”

“The Coastal Zone Act has been, and continues to be vital to the protection of our fragile coastal resources. We believe that it is now being undermined by a failure of government (DNREC) to implement and uphold this law, and that we must hold our state government accountable to ensure they are not allowed to ignore the law and reverse the progress made over the past 40 years and which has ensured the protection of the coast for all Delawareans” said Dave Carter, conservation chair for Delaware Audubon.