All posts tagged 'DNREC'

The Tar Sands Debate Comes to Delaware

June 25, 2013 11:49
by Jameson Tweedie

Across the country, environmental organizations have made the transport and processing of crude oil from the tar sands of Alberta, Canada a focal point in their efforts to reduce carbon emissions, citing higher carbon emissions of oil from the tar sands (although that assertion is disputed).  The proposed Keystone XL pipeline currently being reviewed by the State Department is perhaps the most visible example of this fight, with numerous environmental organizations lining up to oppose it (for example, the Sierra Club, the Natural Resources Defense Council, 350.org and others), with some advocating civil disobedience in their efforts to defeat the pipeline.  (Slightly less high profile is the Northern Gateway pipeline – which would transport crude from Alberta through British Colombia to the west coast for overseas export – now opposed by the government of British Columbia.)  While the Keystone XL debate may not directly impact Delaware, it appears the focus on tar sands crude, and the controversy that seems to follow it, has arrived in Delaware in what might otherwise have been considered an economic success story:  PBF Energy’s Delaware City Refinery.

The Delaware City Refinery was shuttered in 2009, but after being purchased by PBF Energy in 2010 – reportedly after significant personal effort by Governor Jack Markell – the Refinery reopened bringing hundreds of jobs back to the state.  According to PBF, the Delaware City Refinery is “one of the largest and most complex refineries on the East Coast” and employs more than 400 full time employees.  (For comparison, the Delaware City and nearby Paulsboro, N.J. Refineries can process a combined total of 370,000 barrels per day; the Keystone XL pipeline would carry up to 830,000 barrels per day.)  The Refinery, however, has encountered a laundry list of headlines in recent months, including a violation notice from the Department of Natural Resources and Environmental Control (DNREC) for unauthorized releases of 527,000 pounds of sulfur dioxide, complaints from nearby residents after a separate incident with the Refinery’s pollution control system “sent dark smoke billowing from a stack at the plant,” and disputes about the significantly expanded rail car delivery of crude oil, including tar sands crude, to the Refinery.  The expansion of the Refinery’s rail yard in particular met with significant environmental opposition because of the use of Canadian tar sands crude to supply the Refinery, and the subsequent shipment by barge of such crude up the Delaware River to PBF’s nearby Paulsboro, New Jersey refinery. 

The most recent disputes are over the facility’s air emissions permits.  One permit process, for the Refinery's Title V permit, included the expected, if unexpectedly high, profile:  Those in support, including a rally of hundreds of refinery workers and supporters before the public DNREC hearing; those in opposition, including an opposing rally by groups opposing the permit; and the DNREC hearing, moved into a larger venue to accommodate the unusually large crowd and reportedly attended by nearly 100 police officers.   The issue is pending before DNREC.  Following the roughly contemporaneous issuance of another permit (PDF), the Air Pollution Control permit for the Marine Vapor Recovery System at the Refinery, however, the Delaware Chapter of the Sierra Club and the Delaware Audubon Society filed challenges to DNREC’s permit with the state’s Environmental Appeals Board (PDF) and with the Coastal Zone Industrial Control Board (PDF) based in part on assertions that the permit violates Delaware’s Coastal Zone Act.  (The Sierra Club and Audubon Society are represented by the Widener University Environmental Law Clinic, which is also representing the Sierra Club in a currently pending appeal (PDF at 2) to the Delaware Supreme Court of another decision relating to interpretation of the Coastal Zone Act.)

Delaware’s Coastal Zone Act (7 Del. C. sec. 7001, et. seq.) was signed into law in 1971 and, as its name suggests, prohibits certain land uses within a zone along Delaware’s coast.  The Act, however, grandfathered in certain activities already occurring within the coastal zone.  Of particular relevance to the Sierra Club’s and Audubon Society’s appeal is the Act’s prohibition on “offshore gas, liquid or solid bulk product transfer facilities” (except those grandfathered in as “nonconforming uses” already occurring in 1971).  See 7. Del. C. sec. 7003.  The appeal, in part, asserts that the Refinery’s expanded rail yard and barge shipment system is a bulk product transfer facility and therefore impermissible under the Coastal Zone Act.  Alternatively, if the operation is otherwise a grandfathered nonconforming use, the appeal asserts that the crude oil transfer is nonetheless impermissible due to the expansion of the refinery’s footprint outside of the permissible grandfathered footprint established in 1971.  The Coastal Zone Industrial Control Board has scheduled a public hearing on the appeal of the Marine Vapor Recovery System permit for July 16, 2013.

Adding a slight flavor of intrigue to the dispute is a recent report by the Wilmington News Journal that DNREC issued the permit despite warnings to DNREC from the Delaware Attorney General’s Office that the permit may violate the Coastal Zone Act.  According to the News Journal’s report, “Gov. Jack Markell and top state environmental officials have apparently snubbed and suppressed a warning from state attorneys about possible regulatory violations at the Delaware City Refinery, opting instead to seek outside legal guidance on contested changes at the 210,000 barrel per day plant.”  The News Journal, citing unnamed state officials, reported that the Attorney General’s Office had provided DNREC with a memorandum providing a “detailed list of the refinery’s potential Coastal Zone Act conflicts,” apparently including the refinery’s expanded rail yard and the barge shipments to PBF's Paulsboro Refinery.   

Regardless of the News Journal’s report, however, the dispute serves as a reminder of the nationwide stage on which the climate change debate, and by proxy the fight over Canadian tar sands crude, is now fought.   

 

Carbon Dioxide | Carbon Emissions | Climate Change

Delaware Advisory Committee Suggests Mandatory Disclosure of Rising Sea Levels in Real Estate Contracts

January 14, 2013 17:09
by J. Wylie Donald

If the State dropped a notice in the mail advising you that 10% of your property was going to be condemned without compensation, you would immediately hire a lawyer, seek out the press and raise holy **** about the trampling of individual rights, justice and the Constitution. That is the situation in which Delaware contemplates finding itself, but the Constitution is no salve.  Rising sea levels of between 0.5 and 1.5 meters are predicted to inundate between 8% and 11% of the state's land area by 2100.

Delaware, however, is not one to tear its clothes and beat its chest in lamentation; instead, it is acting. Last July, the Delaware Sea Level Rise Advisory Committee published Preparing for Tomorrow's High Tide:  Sea Level Rise Vulnerability Assessment for the State of Delaware. Besides providing background about sea level rise and the methodology of vulnerability determinations, it looked at 79 resources in the state and assessed the impact of rising sea levels. Sixteen of those resources were assessed as being of high concern statewide.

To quote the Executive Summary:

"Within those potentially inundated areas lie transportation and port infrastructure, historic fishing villages, resort towns, agricultural fields, wastewater treatment facilities and vast stretches of wetlands and wildlife habitat of hemispheric importance."

"[E]very Delawarean is likely to be affected by sea level rise through increased costs of maintaining public infrastructure, decreased tax base, loss of recreational opportunities and wildlife habitat, or loss of community character."

From roads to wetlands to tourism, Delaware now has a basis to marshal its resources, and its polity, and move forward into the next phase:  adaptation planning.

The United Nations Framework Convention on Climate Change defines "adaptation" thus: "Adaptation refers to adjustments in ecological, social, or economic systems in response to actual or expected climatic stimuli and their effects or impacts. It refers to changes in processes, practices, and structures to moderate potential damages or to benefit from opportunities associated with climate change."  Delaware's focus is to "identify ways that government, businesses and citizens can adapt their policies and business practices to reduce the impact of seal level rise on our state's citizens, economy, and natural resources."

The committee has wasted little time in taking action on the vulnerabilities identified in July. As reported in Delaware Online, last Thursday the committee offered up for public comment this question:  "whether property owners selling inside boundaries where seas are predicted to rise will have to disclose that vulnerability to potential buyers."  Hearings will begin in February.  Currently, disclosure of a property's location in a flood zone is required, but flood zones are based on the historical record. Requiring a disclosure about a prediction for the future is new.

One can quickly see a few of the implications. First, all things being equal, some will be dissuaded from purchasing, demand will drop and prices will fall. How much and when is anybody's guess.  Second, the drawing of the sea-level-rise boundary may be intensely litigated. Indeed, we have already seen one ocean front property rights case, Stop the Beach Renourishment v. Fla. Dep't of Envtl. Protection, 130 S. Ct. 2592 (2010), make its way all the way to the Supreme Court. Third, realtors, real estate lawyers and other professionals involved in shore transactions will be pleased by this development as the liability for non-disclosure will be much harder to pin on them.  An injured property owner likely will find it difficult to assert an adviser's failure to disclose the risk was the proximate cause of his or her injury.  See J. Wylie Donald, Getting Ahead of Storm Surge, Especially in the Era of Climate Change.  

Fourth, and perhaps most significantly, this small step will set the stage down the road when questions of compensation arise for individuals and entities harmed by rising sea levels. Buyers with such a disclosure in their contracts will be hard-pressed to claim ignorance. That in turn is likely to figure into the public discussion of fairness and the right to compensation.

Of course, the committee's raising the point for discussion does not mean anything is going to change.  But, with the dialogue initiated, we expect that this issue will no longer be quietly ignored.  In any event, we look forward to further discussion in February.

Climate Change | Climate Change Effects | Regulation | Rising Sea Levels

Connecticut Introduces Bill to Incorporate Climate Change Strategic Retreat into Coastal Zone Management Act

March 4, 2012 23:48
by J. Wylie Donald


Apocryphally, the emperor of the Eternal City took out his violin while the city was consumed in a conflagration. In lay terms, Nero fiddled while Rome burned.  Some would like to draw the analogy to climate change policy in the United States, held up based on principles, or partisanship, or grandstanding or blind denial.  Whatever the reason, the climate for making climate change policy has grown decidedly colder since the heady days of 2008 when even the Republican party was on board.   

Nevertheless, some are not waiting until prediction becomes reality.  For example, lawmakers in Connecticut, which opened the 2012 legislative session on February 8, have the opportunity to address one of the issues caused by a changing climate:  rising sea levels. Two bills introduced in the General Assembly focus on the changing shore. The first, Raised Bill No. 5127, is at first glance an inconsequential revision to the definition of the high tide line. Currently, Connecticut defines mean high tide as "a line or mark left upon tide flats, beaches, or along shore objects that indicates the intersection of the land with the water's surface at the maximum height reached by a rising tide."  Conn. Gen. Stat. Section 22a-359(c).  It can be determined by, among other things, a line of oil, a line of scum, "a more or less continuous deposit of fine shell", vegetation lines or tidal gauge.  Id.  Some (including the authors of 5127) might conclude that for regulatory and enforcement purposes that is a little vague. So the proposed bill seeks something a little more rigorous.

But if you thought it would be something simple like the Greenwhich Meridian or an atomic clock, you would be mistaken.  Under the proposed bill, Connecticut would look to the location of the topographical elevation of the highest predicted tide for the period  beginning in 1983 and ending in 2001, referenced to the most recent National Tidal Datum Epoch as published by the National Oceanographic and Atmospheric Administration (NOAA) and described in terms of feet of elevation above the North American Vertical Datum of 1988. Raised Bill No. 5127(c).  This elevation is specified for each municipality along the Connecticut littoral.  Id.

While this change advances the science of seashore delineation and has been adopted by others, e.g., Fla. Stat. 177.27, other states are still content to rely on a subjective view of the beach.  E.g.,  Rev. Code Wash.  90.58.030(2)(c).  So what is driving the change in Connecticut?

If one turns to the next Raised Bill before the General Assembly one will have the answer.  Raised Bill No. 5128 proposes revisions to the Coastal Zone Management Act.  Section 2 adds a new definition, "Rise in sea level," that is keyed to the North American Vertical Data.  The definition goes on to report that the rise in Connecticut coastal sea level is projected to occur "at an average rate of not less than 2.4 inches per decade, ..."  Id.

"Rise in sea level" is important because 5128 makes clear why precise delineation is going to matter.  New subsection (b)(1)(K) to Conn. Gen. Stat. 22a-92 seeks "to encourage a fair and orderly legal process to foster strategic retreat of property ownership, over a period of several decades, for coastal lands that have a likelihood of being lost due to erosion and coastal lands that contain structures that are subject to repetitive damage."  Napoleon from Moscow.  Lee from Gettysburg.  The 21st Century's strategic retreat may last far longer and cost far more than anything in the history books.  The Delaware Department of Natural Resources and Environmental Control described "strategic retreat" as the "remov[al] of oceanfront buildings as the shoreline erodes to maintain a beach width or certain distance between buildings and the water. An effective strategic retreat plan would involve systematic removal of structures as the beach migrates inland and the buildings become threatened by waves and surf."  Jim Titus at EPA described it as "minimizing hazards and environmental impacts by removing development from the most vulnerable areas."  However one describes it, DNREC's further comment is worth noting:  "there are no easy solutions or clear implementation strategies to accompany the issue of strategic retreat while accomplishing the  management goal of preserving and maintaining recreational and protective beaches. Strategic retreat requires hard decisionmaking, funding, and firm commitment by the Administration and the Legislature if it is to succeed."  Accordingly, the Connecticut Legislature should take note:  this is not going to be a walk in the park.  Nevertheless, assuming the political hurdles can be overcome, strategic retreat will undoubtedly become part of the climate change response.  Kudos to Connecticut for not fiddling around. 

Climate Change | Climate Change Litigation | Legislation | Rising Sea Levels


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