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Delaware Audubon v. Delaware Department of Natural Resources And Environmental Control

Superior Court of Delaware

January 19, 2018


          Submitted: December 13, 2017

         Upon Appeal from the Coastal Zone Industrial Control Board

          Bart E. Cassidy, Esquire, pro hac vice

          Katherine L. Vaccaro, Esquire, pro hac vice

          Diane Clarke Streett, Judge.


         Appellants Delaware Audubon ("Audubon") and League of Women Voters of Delaware ("League of Women Voters") (collectively, "Appellants") have appealed the Coastal Zone Industrial Control Board's decision, which dismissed, on the basis of standing, their appeal of a Department of Natural Resources and Environmental Control ("DNREC") permit. Their appeal challenged a permit granted to the Delaware City Refining Company, LLC (the "Refinery" or "Appellee") by DNREC to "utilize existing tank and existing marine loading equipment at [the Refinery's] existing facilities [in] Delaware City to enable denatured ethanol to be loaded from storage tanks to marine vessels and shipped to offsite facilities[1]" and authorized the shipment of up to 10, 000 barrels of ethanol per day (the "Permit").

         On appeal to this Court, Appellants assert that an increase in air pollution, noise pollution, infringement on recreational enjoyment, and risk of explosion are all injuries in fact that result from the issuance of the Permit and can be redressed by the Coastal Zone Industrial Board (the "Board").

         Appellee asserts that the Board correctly dismissed Appellants' appeal below on standing grounds because Appellants did not show that their alleged injuries in fact resulted from the issuance of the Permit.

         For the reasons set forth below, the matter is REMANDED.

         Factual and Procedural Background

         On August 19, 2016, the Refinery submitted to DNREC an application for a Coastal Zone Act ("CZA") permit. The Refinery's application sought approval for its "Ethanol Marketing Project" which involved "the loading of ethanol on to marine vessels at the existing piers to ship to off-site locations, to the extent consistent with market conditions. Ethanol throughput at the piers will be up to 10, 000 barrels per day ("BPD") on an annual average basis."[2] The application stated that the permit would "not result in change in production at the Refinery"[3] or "alter the current typical operating schedule."[4]

         On October 26, 2016, Robert P. Haynes, the Hearing Officer of DNREC, conducted a public hearing on the CZA application. On December 27, 2016, the Hearing Officer submitted a report to the Honorable David S. Small, Secretary of DNREC in support of the application. That same day, the Secretary issued Order No. 2016-CZ-0050 ("Secretary's Order") which granted the Permit to Refinery.[5]

         On January 17, 2017, Appellants filed an appeal to the Board which challenged DNREC's authorization of the Permit and alleged seven counts of CZA violations. On February 22, 2017, the Board held a final pre-hearing conference and decided that the evidentiary hearing would first proceed on the issue of whether Appellants had standing to bring their appeal.

         On February 27, 2017, the Board conducted its evidentiary hearing on standing ("Board Hearing").[6] Appellants presented the testimony of Matthew Del Pizzo, the current of President of Audubon; David Carter, a member of Audubon and League of Women Voters; and Mark B. Martell, a member of Audubon's board. Appellants also introduced the affidavit of Mr. Del Pizzo and the affidavit of Jill Fuchs, the current President of the League of Women Voters. The Board also accepted a "Chronology" that consisted of the complete record that the Secretary considered before issuing the Secretary's Order. Additionally, the Board considered a "Joint Final Pre-Hearing Order" that included stipulated facts agreed to by all parties.[7]

         Matthew Del Pizzo testified concerning his recreational enjoyment of Delaware City. He stated that he would not frequent Delaware City and its restaurants when barges were offloading because the fumes "take[] away from the enjoyment of the leisure, you know, eating and enjoying the waterfront."[8] He further testified that "we wouldn't release a bird during that period with all the fumes and things that come with that."[9] Upon further inquiry, Del Pizzo elaborated that, "Well, they have had to clear the deck when they have had incidents at the barge. Because people, I believe, were sent or taken to a hospital from exposures to what happened there."[10]

         David B. Carter, a member of Audubon and League of Women Voters, testified that "there is always in the back of your mind concern over a possible spill. I have responded to many of these as a professional."[11] "There is always the constant concern of explosion, which, in particular, for something like deconal [sic], [12] which is highly flammable, much more flammable than gas."[13] He also testified that "my mother still lives in the house I grew up in in New Castle" and that "it's an added stress for me. You know, if there is an explosion, if there is a rescue delay that we can't get there, it bothers me a lot."[14] He further stated, "I have had enjoyment of this coastal zone. I have, since I was a child, and even more so now that I am retired, I recreate and use this area."[15] Carter added that he recreated in the area through duck hunting, kayaking, and nature photography.[16] He also said that he avoids eating at Crabby Dick's restaurant because "diesel has always bothered me" and "[i]t actually makes me nauseous to smell those fumes."[17]

         Mark Martell, a board member of Audubon, testified that he lived "within the blast radius of the Refinery . ., "[18] He stated that he hears trains going into and out of the Refinery "at all hours."[19] Martell also testified that he and his wife no longer gardened because of diesel fumes and the "atmosphere around our home and what was coming down."[20] Appellee did not present any witnesses and moved to dismiss the appeal.

         After closing arguments and off the record deliberations, the Board returned and voted to grant Appellee's motion to dismiss. Four Board members voted in favor of dismissing the appeal; one Board member voted against.

         On March 16, 2017, the Board issued its written Decision and Final Order ("Board Opinion") memorializing its dismissal of Appellant's appeal on standing grounds.[21] The Board concluded that:

All of the "injuries" complained of by the members related to the Refinery's current operations and were not connected, or otherwise traceable, to activities authorized under the Permit, namely the transshipment of ethanol. Although Appellants argued that as a result of the Permit an increase in rail and/or barge traffic is "self-evident, " the Board heard no evidence that such traffic will increase due to activities authorized under the Permit.

         The Board also noted that because "none of the three members of Appellants met the 'individual standing' requirement for organizational standing, the Board finds it unnecessary to analyze the other two requirements."[22]

         Parties' Contentions

         On October 18, 2017, Appellants filed their Opening Brief. Appellants contend that "[t]he injury in fact arises from the air pollution, noise, and recreational impacts caused by trains and marine vessels bringing ethanol to and shipping ethanol from the Refinery"[23] and that those injuries will increase as a result of the Permit.

         On November 2, 2017, Max B. Walton, Esq. filed a letter of non-participation on behalf of DNREC. He stated that DNREC took no position on standing before the Board and that DNREC did not take a position on appeal before this Court.[24]DNREC did not file a brief in response to Appellants' Opening Brief.

         On November 7, 2017, Appellee filed its Answering Brief. Appellee contends that Appellants did not meet their burden of proof on the causation element of standing because the "alleged harms relate to pre-existing activities"[25] and were present before the Secretary issued the Permit. Appellee further contends that Appellants did not produce factual evidence ...

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