News

July 17, 2003

It has been more than two years since the Coastal Zone Industrial Control Board last met. And it showed. After stumbling through a marathon hearing, however, the panel was able to uphold Sunoco's Coastal Zone Act permit.

The decision on July 16 apparently clears the way for the oil company to complete installation of a sulfur-recovery unit at its Marcus Hook refinery to minimize the need to burn off acid gases and release sulfur dioxide into the atmosphere after the adjacent General Chemical plant, which now buys the byproduct gases, shuts down in September.

The four environmental groups which appealed the decision by John Hughes, secretary of natural resources and environmental control, to issue the permit can still appeal the board's ruling to Superior Court, but that would not appear likely since they have indicated they think installing the new unit is a good idea. Their appeal of the permit included some technical objections relating to environmental impact, but mostly centered on the process by which the company's application was considered.

Sunoco spokeswoman Carol Sloan said the appeal did not hold up installation of the unit. "Sunoco has always pursued an extremely aggressive timeline with regard to this project and expects completion before General Chemical shuts down," she said. Delaforum was unable to obtain a response from the environmental organizations on whether a court appeal will be pursued.

The sulfur-recovery unit is to be located on the Delaware side of the refinery, which straddles the Delaware-Pennsilvania border. The gasses are generated in Pennsylvania.

Before formally getting down to the substance of the appeal,. the board, by voice vote after nearly three hours of rambling pro-am style through discussion and testimony, decided that Common Cause of Delaware, the Audubon Society and Green Delaware could not participate in the hearing because they were not represented by lawyers. Common Cause had filed the appeal and the other two organizations had joined in.

Before the vote, Phoebe Young, a deputy attorney general who serves as the board's lawyer, cautioned that, whatever way the vote went, that decision could be grounds for appealing the ultimate ruling.

The board did accept John Kearney, of the Clean Air Council of Delaware, as a legitimate party because he had joined the Common Cause appeal as an individual and not as a representative of his organization.

That distinction resulted in some heated exchanges between officials of the appealing organizations and lawyers for Sunoco and the Department of Natural Resources & Environmental Control.

Sunoco's lawyer, David Swayze told the board that such braches in courtroom-style decorum were the reason why the Delaware Supreme Court had issued a ruling that only a licensed attorney could "engage in the practice of law" before an administrative body. "If there is any better reason for [the ruling], I don't know what it would be," Swayze said.

Kearney countered that the ruling "was not intended for high-powered corporations to use against the little guys." He argued that the Coastal Zone Act itself specifically provides for individual members of the public to participate in the permitting process.

Maryanne McGonegal, of Common Cause, testified that the basis of that organization's objection to granting the permit lay in the department's having changed the 'ground rules' for the public's participation in public hearings just before conducting a hearing on Sunoco's permit application.

She characterized that and the subsequent secretary's decision as an effort by the department to "shut out the public" from environmental decision-making. Its joining in the 'lawyers-only' argument as grounds for dismissing the appeal amounted to "conspir[ing] with the attorney for Sunoco to prevent a discussion of substance" before the board, she charged.

McGonegal said Keith Trostle, the deputy attorney general representing the department, attempted to block her access to the record of the public hearing prior to the appeals hearing. She was able to examine it only after invoking the state's Freedom of Information Act and then found the folder to be "nothing but a mess, entirely out of order."

Trostle said the public record was, indeed, made available and that it had been presented to the board on the day after the appeal of the secretary's decision was filed.

Board chair Christine Waisamen said she had not seen the record and Young said it had not been delivered to her, in her capacity as attorney for the board, in timely fashion.

As the board painted itself into a parliamentary corner with a series of parliamentary motions, some of which were seconded and voted upon and others which were not, board member Victor Singer attempted to straighten out the process with a series of stepwise motions. At one point Singer, who is on the appeals board by virtue of his position as chairman of the New Castle County Planning Board, actually conducted the vote on one of his motions.

2003. All rights reserved.

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