DELAWARE AUDUBON and LEAGUE OF WOMEN VOTERS OF DELAWARE Appellants,
DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL and DELAWARE CITY REFINING COMPANY, LLC, Appellees.
Submitted: December 13, 2017
Appeal from the Coastal Zone Industrial Control Board
E. Cassidy, Esquire, pro hac vice
Katherine L. Vaccaro, Esquire, pro hac vice
Clarke Streett, Judge.
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" and authorized the shipment of up to
10, 000 barrels of ethanol per day (the "Permit").
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
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.
reasons set forth below, the matter is
and Procedural Background
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." The application stated that
the permit would "not result in change in production at
the Refinery" or "alter the current typical
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.
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.
February 27, 2017, the Board conducted its evidentiary
hearing on standing ("Board
Hearing"). 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.
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." He further testified that "we
wouldn't release a bird during that period with all the
fumes and things that come with that." 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."
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." "There is always the
constant concern of explosion, which, in particular, for
something like deconal [sic],  which is highly flammable,
much more flammable than gas." 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." 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." Carter added that he recreated in the
area through duck hunting, kayaking, and nature
photography. 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."
Martell, a board member of Audubon, testified that he lived
"within the blast radius of the Refinery . .,
" He stated that he hears trains going
into and out of the Refinery "at all
hours." 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." Appellee did not present any witnesses
and moved to dismiss the appeal.
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.
March 16, 2017, the Board issued its written Decision and
Final Order ("Board Opinion") memorializing its
dismissal of Appellant's appeal on standing
grounds. 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.
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
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" and that
those injuries will increase as a result of the Permit.
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.DNREC did not file a brief in response to
Appellants' Opening Brief.
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" and were present before the Secretary
issued the Permit. Appellee further contends that Appellants
did not produce factual evidence ...