The Civic League for New Castle County Stands With These Delawareans Against HB 190
June 6, 2017
To: HB
190 Sponsors and Cosponsors: Rep. Ed Osienski, Senator Bryan Townsend, Senator
Pettyjohn, Rep. Heffernan, Rep. Gray, Rep. Briggs King, Rep. Collins, Rep.
Dukes, Rep. Hensley, Rep. Hudson, Rep. Kenton, Rep. Miro, Rep. Outten, Rep.
Postles, Rep. Potter, Rep. B. Short, Rep. D. Short, Rep. Spiegelman, Rep.
Wilson, and Rep. Yearick
House Natural Resources Committee: Chair Debra Heffernan, Vice-Chair Michael
Mulrooney, Rep. Quinton Johnson, Rep. David Bentz, Rep. John A. Kowalko, Rep. Gerald
L. Brady, Rep. Trey Charles Paradee, Rep. Ronald E. Gray, Rep. Richard G.
Collins, Rep. Charles S Postles Jr., Rep. William J. Carson
Delaware General Assembly
Re: HB 190 AN ACT TO AMEND TITLE 7 OF THE
DELAWARE CODE RELATING TO THE COASTAL ZONE ACT.
Delaware’s
Coastal Zone Act is a landmark piece of legislation that served as a national
model for conserving natural resources, protecting public health, and providing
business opportunities. The Coastal Zone
Act allows for new manufacturing (with a permit), yet restricts the most dangerous types of heavy
industrial activity and bulk product transfer that have the most devastating
impacts on communities, public health and ecosystems.
For
the past 46 years the Coastal Zone Act has been highly successful and
effective. Delaware has become a leading
destination for tourism, contributing over $3 billion annually to the state’s
economy and employing more than 40,000 people.
In 2012 the State of Delaware launched the Bayshore Initiative in
partnership with the U.S. Department of Interior and nonprofit organization
partners. “Delaware is blessed with
beautiful natural resources” said John Carney in the press release. “The Bayshore Initiative builds on Delaware’s
reputation as a unique and beautiful natural resource and boosts our economy.
The initiative is encouraging more Delawareans and visitors to enjoy the state
as a world-class birding and wildlife-watching destination,” said then Governor
Jack Markell. The State of Delaware
press release continued to state “The Delaware Bayshore Initiative continues
the conservation commitment made over the past half century by… government
officials like Governor Russell W. Peterson in establishing Delaware’s Coastal
Zone Act.” [1]
The
air quality of Delaware has also improved.
Delaware’s 2014 Annual Air Quality Report shows that the state, for the
very first time, met all National Ambient Air Quality Standards, and that
pollutant levels had either declined or stabilized.[2] Healthy air is vital to Delaware’s future, as
air pollution is risk to health, especially among children. Reducing air pollution reduces “the burden of
disease from stroke, heart disease, lung cancer, and both chronic and acute respiratory
diseases, including asthma”.[3]
HB
190 places the valuable resource of the Delaware Bayshore at risk to industrial
accidents and chemical spills that could foul the estuary and harm our
recreational economy for generations to come. HB 190 also promises to
increase industrial pollution which places the health and welfare of
Delawareans at risk. HB 190 does this by removing the heart of the
Coastal Zone Act: the prohibition on new
heavy industry and the prohibition on bulk product transfer.
We, the
undersigned organizations and individuals, oppose HB 190 for the following
reasons:
- It irrevocably modifies the
intent of the Coastal Zone Act through changes it makes to § 7001.
- It allows new heavy industry in
the Coastal Zone, which would be harmful to public.
- It allows bulk product transfer
in the Coastal Zone, which presents inherent dangers in transferring
hazardous materials, and also attracts more heavy industry to the Coastal
Zone, increasing public health and ecosystem risks.
Instead, we
ask that HB 190 be opposed and withdrawn pending research and a
stakeholder process. HB
190’s authors and sponsors failed to engage in an open public dialogue from a
variety of stakeholders before submitting the bill, and have done a weak job of
outreach afterwards (sometimes presenting misleading arguments). The sponsors have falsely claimed to have had
outreach with “both sides”, incorrectly pitting jobs against the environment
and completely ignoring the public health, recreation and quality of life
implications of the bill.
Before
changes are proposed for the Coastal Zone Act, DNREC should be asked to conduct
a study of the environmental and economic benefits of the Coastal Zone Act, as
well as how the Act as currently written could be implemented to better serve
communities, the environment, and economic interests.
It
is only when armed with true facts that a sincere discussion of the Coastal
Zone Act can occur. Discussions of the
public trust should not be held behind closed doors with special
interests. An inclusive and public
stakeholder evaluation should precede any proposed changes to the Coastal Zone
Act.
HB 190
allows activities that place Delaware’s coastal communities at risk. The types of activities that would be
allowable under the bill include: new coal-fired power plants with import of
dirty coal via ship from China (used in the coastal zone); transfer of raw
sewage and garbage for international export for combustion or disposal
(produced in the coastal zone); shipment of petroleum coke or other hazardous
waste products generated at the Delaware City Refinery (produced in the coastal
zone), shipment of any waste products from any of the heavy industry facilities
currently operating in the Coastal Zone, including the Delaware City Refinery,
Croda, and Keuhne Chemical Company; import of heavy chemical raw materials,
including flammable and explosive chemicals, for existing or new heavy
industry. HB 190 requires bulk products
to originate from or be used in the Coastal Zone, increasing the likelihood of more
polluting heavy industry or more polluting manufacturing in the Coastal
Zone. HB190 therefore has the potential
to reverse the positive strides that Delaware has made to improve air quality,
reduce air quality action days, and protect public health. It is also noted that HB 190 was introduced on
a Code Orange Air Quality Action Day.
BULK PRODUCT
TRANSFER IS DANGEROUS
Bulk product
transfer has inherent risks. The Coastal
Zone Act states that “bulk product transfer facilities represent a significant
danger of pollution to the coastal zone” (§7001). Risks of bulk product transfer include spills
of hazardous materials, which can pollute the Delaware River and estuary, as
well as foul the shoreline. Delaware
could also experience increased risks of rail accidents if rail connections are
part of the bulk product transfer operation.
It is important to note here that the News Journal has recently reported
that Delaware is one of only a few states that fails to inspect our rail lines
for safety.[4] Delaware lacks the needed infrastructure and
management to prevent catastrophic disaster from bulk product transfer.
HB
190’s changes concerning bulk product transfer facilities are especially
unfortunate. It removes § 7001’s strong
statement that prohibition of new bulk product transfer facilities is “deemed
imperative” because their effects are against public policy, but fails to offer
any justification for weakening the Act in this way. In addition, it opens up the possibility that
new bulk product transfer facilities will be built on the nine Appendix B sites
that are actually on the water—facilities that would seem to be creating
competition for the publicly-funded and supported Port of Wilmington. It is simply unclear why either of those
steps are necessary.
Delaware’s
shipment needs are already met by the Port of Wilmington. Facilities in the Coastal Zone that have
piers are already able to operate those piers for the use of the facility
without needing bulk product transfer permissions, and bulk product transfer is
already allowed at the Port of Wilmington.
Only the Port has the infrastructure needed to address the safety needs
of bulk product transfer. Dispersing
bulk product transfer to other sites along the Delaware River spreads emergency
response resources very thin and increases the probability of maritime and shore-based
accidents.
Liquefied
Natural Gas limitations are misleading. HB 190 restricts the bulk product transfer of
liquefied natural gas, but this is already allowable at the Port of
Wilmington. The bill therefore does not
prohibit the transfer of LNG from the Coastal Zone, but only eliminates
competition from LNG transfer, protecting the Port of Wilmington’s interest.
HB 190 is
poorly written and dangerously ambiguous.
For example, while HB 190 exempts grain from the geographic limitations
for bulk product transfer, it is ambiguous about whether hazardous substances
that are derived exclusively from grain, including ethanol, are also permitted
to be transferred unrestricted.
Bulk
products that should be absolutely prohibited from transfer in the
Coastal Zone because of their risks of spills and public health dangers include any
sources of energy (including, but not limited to oil, coal, natural gas,
ethanol, propane, and butane) as well as materials regulated under the Toxic
Substance Control Act (TSCA).
CONVERSION
PERMIT (§7014)
Heavy industry
is by definition a major source of air pollution and would create new public
health risks. HB 190 allows
existing heavy industry to operate new heavy industrial uses on available land
within their footprint and new heavy industry on abandoned sites of
nonconforming use. Air pollution has been documented by the
World Health Organization and the Environmental Protection Agency to be a
source of public health risk, disease and death. Risk of death is especially high among
children who live in fenceline communities.[5] HB 190 perpetuates conditions of
environmental injustice in Delaware.
Delaware Health and Social Services cancer incidence data shows high
rates of cancer in residential communities along the Coastal Zone industrial
corridor from Claymont to Delaware City and census tracts downwind.[6] This area is where 13 of the 14 sites of
nonconforming use are located. HB 190
increases the public health environmental burden in these low income
communities and communities of color, including Claymont, Southbridge and
Eastside Wilmington, Delaware City and Polktown.
Environmental
Impact analysis required for a conversion permit (§7014(c)(1)) is meaningless
and offers zero protection.
Delaware has no regulatory standard for what an environmental impact
statement or analysis should look like and what it should contain. Delaware does not require such analysis to be
peer-reviewed. Delaware does not require
any scientific rigor whatsoever. DNREC
staff has already identified through the recent Rehoboth Ocean Outfall’s Environmental
Impact Statement that it lacks standards and procedures for adequately
evaluating environmental impact analysis.
Because environmental impact analysis in Delaware is arbitrary and
capricious, DNREC lacks the ability to conduct an environmental review for
conversion permits in the Coastal Zone.
Indicators
for assessing environmental projects have never been developed. Despite nearly two decades, Delaware has not yet
adopted indicators for evaluating environmental harm or how offsets should be
measured that were outlined in the “Environmental Goals and Indicators for
Delaware’s Coastal Zone” report conducted by DNREC and the Environmental
Indicators Technical Advisory Committee in 1999. These indicators are essential for determining
the environmental impact of permitted projects in the Coastal Zone so that
offsets can be adequately allocated.
Because DNREC has failed to promulgate indicators, all decisions made on
the environmental impacts of projects in the Coastal Zone are arbitrary and
capricious.
DNREC is
currently unable to manage existing permits and may be equally unable to take
on the new responsibilities of HB 190. DNREC has a
poor track record on permit implementation, particularly for the NPDES permit
program. EPA described the extent of the
problem:
As of the end of Fiscal Year 2013 (through
September 30, 2012), 12 of DNREC’s major permits were expired representing a
57% backlog of the major permits universe, and 23 minor permits were expired
representing a 49% backlog of the minor permit universe.[7]
An
example of the depth of this problem is the Delaware City Refinery’s NPDES
Permit, which was issued in 1997 and has been on administrative extension since
2002, despite a public hearing on a permit renewal in March 2015. With the substantial backlog in NPDES
permits, we have little confidence that DNREC has the capacity to accept the
new permitting responsibilities required by HB 190.
Furthermore,
DNREC has also demonstrated an inability to collect on existing fines, and has
a substantial backlog in FOIA, demonstrating that the Department lacks the
capacity to enforce existing environmental regulations, let alone new ones.
Financial
assurances are inadequate. Financial assurances
required in §7014 (c) (8) of the bill are inadequate to cover the costs of
long-term environmental degradation in the event of a spill, explosion, or
other catastrophe. The current bill
leaves the determination of cost and insurance provisions to DNREC and not to
market conditions. This vagueness
underscores the risks of incidents like Metachem, where the disaster is one of
generational impact. Despite spending
~$115M, the estimated costs of future remediation to prevent the spills from
reaching the deeper aquifer involved are currently unknown.
JUSTIFICATIONS
FOR THE BILL ARE FLAWED
Environmental
Remediation: HB 190’s sponsors have inaccurately argued
that the 14 sites of nonconforming use are in need of environmental
remediation, and that the cleanup funds must come from redevelopment. This is a red herring, all of the sites are
either in existing federally-mandated environmental remediation programs or are
currently operating and therefore not subject to cleanup requirements and/or
unable to utilize the justification that cleanup demands new heavy industrial
development. The 14 sites of
nonconforming use and their environmental programs are as follows:
1.
Chloramone/Keuhne Chemical Company: operating, also has a 2011 EPA Consent
Agreement
2.
Citisteel/Evraz Steel: HSCA
3.
Delaware Storage Pipeline: operating
4.
Edgemoor:
RCRA
5.
Formosa:
NPL (Superfund), and still operating
6.
General Chemical: RCRA
7.
Kaneka:
HSCA
8.
Oceanport:
operating
9.
Oxy Chemicals: RCRA
10. Port of
Wilmington: operating
11. Standard
Chlorine / Metachem: NPL (Superfund)
12. Refinery: RCRA and also still operating
13. SunOil: RCRA and HSCA
14. Uniqema /
Croda: HSCA and also still operating
State
and federal cleanup programs are currently managing environmental hazards at
all the non-operating existing sites of nonconforming use. DNREC has not presented any evidence to the
public that the environmental remediation at any of these sites is substandard or
deficient.
Prior
information provided by DNREC suggests that in some cases remediation may be
more dangerous. For example, DNREC has
long contended that removal of the dioxin pile at the Edgemoor site would
increase public health risk. It is
unclear that doing more at contaminated sites would be more harmful.
Bulk Product
Transfer needed by Chemours. Arguments
that Chemours has demanded Bulk Product Transfer or they would move operations
out of Delaware has no merit. Chemours has already sold off all of its
assets in the Coastal Zone. Edgemoor has
been sold to the Port of Wilmington for $10 million, and the DuPont Sulfuric
Acid Regeneration Plant was also sold in 2016.
Chemours has no interest in the Coastal Zone.
Furthermore,
Chemours has recently committed to building a new refrigerant plant in Corpus
Christi TX, likely because of the close proximity and lower cost of natural gas
in Texas. The costs of raw materials and
energy, rather than the Coastal Zone Act, appear to be influencing where
Chemours prefers to develop its new heavy industrial facilities.
ECONOMIC
ANALYSIS PROVES A DIFFERENT DIRECTION FOR FUTURE GROWTH
HB
190 does not “modernize” the Coastal Zone Act.
Instead, it significantly weakens core protections in the Act in the
unsubstantiated hope that backwards-looking options like heavy industry will
somehow provide an economic boost to Delaware.
If
the goal is to allow development of these selected sites, it is unclear why the
proposed changes to the Coastal Zone Act are needed. The current version of the Act allows for the
construction and operation of manufacturing uses on these sites. Things like auto assembly plants, Amazon
warehousing operations, and other large operations that could generate
thousands of good, high-paying jobs can be built on these sites right now
without the need for any changes to the Act.
That those types of operations are not being built now suggests that the
Act is not what is holding these sites back.
HB
190’s proposed changes to the Act are primarily focused on allowing heavy
industry to be built on these sites.
There are at least two reasons to think that this narrow focus will not
be the economic panacea that it is presumed to be. First, building new heavy industry is
inconsistent with the findings of the recent review of the Delaware Economic
Development Office, which specifically found that Delaware’s economic future
does not lie with the heavy industry of the past. In short, it does not fit into the state’s
own conception of how to move the economy forward. Second, the sites to which these proposed
changes would apply were nonconforming uses under the Act, which means that
their heavy industry uses were not prohibited but rather allowed to continue
without regulation under the Act (save only for the need for a permit if they
expanded). In other words, they had
favored status under the Act. The fact
that many of these sites could not make it as heavy industry despite their
favored status means that something other than the Act was the impediment to
their continued operation. Changing the
Act will not remove those underlying problems.
The
belief that merely changing the Act will suddenly lead to redevelopment of
these sites is likely to be overly optimistic.
The proposed changes to the Act do nothing to change any of the other
legal conditions that apply to these sites.
To the extent that there is environmental contamination at these sites,
Delaware’s Hazardous Substances Control Act (which HB 190 specifically requires
compliance with) and the federal CERCLA and RCRA statutes create liabilities
that will add to the costs of redevelopment.
Further, the economic realities that have caused other heavy industry to
close down or leave the Coastal Zone will be unchanged by this legislation.
Given
the lack of development despite the current opportunities available under the
Act, and the low probability that the heavy industry focus of the proposed
changes will alter that dynamic, changing Delaware’s unique Coastal Zone Act
and Russ Peterson’s legacy seems both unnecessary and unwise.
DELAWARE HAS
A TRACK RECORD OF CONVERTING PRIOR INDUSTRIAL SITES TO NON-INDUSTRIAL
BENEFICIAL USE
The
examples of the former Chrysler facility’s conversion to the University of
Delaware’s Science Technology and Advanced Research (STAR) Campus, the
redevelopment of the Christina riverfront in Wilmington to commercial,
residential and recreational space, the NVF redevelopment in Yorklyn, and the
AMOCO Polymers Plant demonstrate that Delaware successfully converts
contaminated industrial sites to beneficial and profitable uses that do not
pollute the community.
The
future of the Coastal Zone Act’s 14 sites of nonconforming use cannot be
addressed with broad-brush approaches that diminish the integrity of Delaware’s
landmark environmental protection law, as offered by HB 190.
We
need to tailor our approaches to the best possible outcome in a manner that is
inclusive, equitable, and based on facts.
We ask that you therefore oppose HB 190 and work with us to find the
solutions that Delaware needs for the prosperity that we all deserve.
Respectfully
submitted,
Delaware
Audubon Society
Matt
Delpizzo, President
Mark
Martell, Conservation Chair
Delaware Alliance
for Health Care
Phillip
Pollner MD, Chair
Civic League
for New Castle County
Jordyn
Pusey, President
Delaware
Riverkeeper Network
Maya
van Rossum, Riverkeeper
Claymont
Dust Study Team
Dee
Whildin
Protecting
our Indian River
Jay
Meyer
Route 7 and
40 Alliance
Barry
Shotwell, Acting President
Socially
Responsible Agricultural Project
Danielle
Diamond, Executive Director
Surfrider
Foundation, Delaware Chapter
John
Doerfler, Chair
Delaware
Sierra Club
Jaimie
Watts, Chair
Clean Air
Council
Joseph
Minott, Esq., Executive Director and Chief Counsel
Green
Delaware
Alan
Muller, Executive Director
Delaware
Women for Inclusion
Deb
Silverman
Resist/PersistDE
Karen Barker
350DE at Tatnall, Climate Education Group
Dr. Dean Goodwin
1st State BIKES
Frank Warnock
Save The Orphanage Property
Ange Connolly
Frank Warnock
Ogletown Resilience
Ange Connolly
Frank Warnock
Delaware Nurses Association
Sarah J. Carmody MBA, Executive Director
Delaware United
Dustyn Thompson
Delaware
Interfaith Power and Light
Lisa
Locke, Executive Director
Delaware
Coalition for Open Government
Nick
Wasileski, President
League of
Women Voters of Delaware
Jill
Fuchs, President
American
Bird Conservancy
Mike
Parr, President
Natural
Resources Defense Council
Robert
Friedman, environmental justice
Sarah Bucic
Founder,
Delaware City Environmental Coalition
David B.
Carter, Ph.D.
Former
DNREC Manager, Delaware Coastal Programs
V. Eugene
McCoy, Ph.D.
Former
member of the Coastal Zone Industrial Control Board
Victor
Singer, P.E. (retired)
Former
member of the Coastal Zone Industrial Control Board (15.5 years)
Andrew T. Manus
Former Executive Director of UD Sea Grant
College Program, Director of the Delaware Division of Fish and Wildlife,
Director of Conservation Programs for Ducks Unlimited Mid-Atlantic Office and
as Director of Conservation Programs for the Delaware Chapter of The Nature Conservancy
Ruth Lytle-Barnaby
President of Planned Parenthood of Delaware
Karen Barker
Science Teacher at The Tatnall School, Delaware
Nature Society's Environmental Educator of the Year 1987, 2015
Dr. Dean Goodwin
Author: Climate Change for Beginners; AP
Environmental Science Teacher Guide; Consultant to: The College Board;
Educational Testing Service; and Board Member: Delaware Association of
Environmental Education
Dr. Jeremy Firestone
Professor of Marine Policy, School of Marine Science
and Policy, University of Delaware
Janet Manchester
Former president, Friends of Bombay Hook
Amy Roe, Ph.D.
Thomas Powers, Ph.D.
Rebecca Powers
Nancy Willing
Sandra Reddy BSN RN
[1] http://www.dnrec.delaware.gov/News/Pages/Delaware-Bayshore-Initiative-given-national-launch-to-spur-conservation,-recreation-and-eco-tourism-within-state.aspx
[2] http://www.dnrec.delaware.gov/Air/Documents/Ann%20Rpt%2014.pdf
[3] http://www.who.int/mediacentre/factsheets/fs313/en/
[4] http://www.delawareonline.com/story/news/2017/05/26/rail-safety-questioned-fuel-shipments-likely-go-up/96672684/
[5] http://www.who.int/gho/phe/outdoor_air_pollution/burden/en/
http://www.who.int/mediacentre/news/releases/2017/pollution-child-death/en/
https://www.epa.gov/clean-air-act-overview/air-pollution-current-and-future-challenges
[6] http://dhss.delaware.gov/dph/dpc/cancer.html
[7] EPA,
2015. Region III NPDES Permit Quality
Review, Delaware, August 6-8, 2013.
U.S. EPA Region III. 1650 Arch Street, Philadelphia, PA 19103.
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