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DNREC offers seats at the table for writing new Coastal Zone regulations

At a Wilmington community center, Delaware environmental officials began to gather the people, interest groups and ideas that will help them implement a controversial law allowing new industrial development along the coast for the first time in almost half a century.

After the legislature passed an update to the 1971 Coastal Zone Act in June, it’s now up to the Department of Natural Resources and Environmental Control to write the regulations setting conditions for new industrial activity to start up at 14 coastal sites where industry already existed when the original law was passed.

To help them implement the new law, H.B. 190, DNREC officials are assembling a Regulatory Advisory Committee (RAC) that may include residents, business groups, environmental nonprofits, lawmakers and other interested parties that want a seat at the table in writing the new regulations.

That’s what drew about 35 residents and representatives of interest groups to Kingswood Community Center on Nov. 29 for the first public meeting in DNREC’s rule-writing process. Another meeting was held in Delaware City the following night.

Participants at the Wilmington event raised a variety of concerns including health risks to residents from new heavy industry; danger to sailboats from ships visiting the new “bulk product transfer” facilities that can be built under the updated law; whether business interests would be allowed to dominate the committee, and whether there was enough time built into DNREC’s schedule for the public to be properly heard.

Michele Roberts of the Environmental Justice Health Alliance told the meeting that the regulatory committee should include representatives of communities where public health is at risk from industrial pollution.

“Fourteen industries have been grandfathered into a community where you have high health disparities,” Roberts said. “We’re saying we want safe chemicals and safer processes; we want to know where the technical resources are that they can trust. It’s one thing to be at the table and it’s another thing to be at the table and know what you are talking about.”

Lisa Matthews, a resident of Wilmington and a member of the New Castle Sailing Club, said she’s worried about an increase in ships carrying hazardous cargo that could be visiting any of the nine bulk product transfer facilities that are allowed to operate under the new law.

“I don’t want to be sailing amid chemical transfer boats,” Matthews said.

But one resident said that if the sites can be cleaned up, the prospect of new industry coming to the coastal strip should be welcomed because of the boost that it would give to the economy.

“I’m just glad something is being done,” said Angela Harris. “Trying to clean it up is crucial. If we can find some way to make some of those sites safe and provide a boost to the economy then I’m all for it. You might just get an area that’s better and more usable for the community than it was before.”

Many of the sites are contaminated with industrial residue, and some are subject to cleanups under the EPA’s Superfund program. The sites include the Standard Chlorine site on Lea Boulevard in New Castle, a former chemical processing facility where a Superfund cleanup is ongoing, and the steel works formerly operated by Evraz Steel at Claymont, which is currently undergoing a voluntary cleanup under the state’s Hazardous Substance Cleanup Act. All but one of the sites are in New Castle County; the other is in Kent County.

Participants at the meeting were split into groups of about six, and asked to discuss what stakeholder groups such as civic associations, business and industry groups, or environmental nonprofits should be represented on the RAC; how members should be selected, and what role the advisory committee should play in the development of regulations.

On the question of how committee members would be selected, one option would be for DNREC itself to identify and appoint members from each stakeholder group, or select nominees who are put forward from each stakeholder group.

And on the development of regulations, attendees were asked whether the committee should develop a draft of regulations and present them to DNREC, or if it should instead just provide guidance to the agency.

Aided by DNREC staffers with flip charts and sharpies, attendees put forward ideas including a demand for people to be able to nominate themselves to the committee, and opposition to the idea of DNREC selecting the members. Proposed stakeholder groups included wildlife experts, tourism interests, and land-use planners.

Before the new law was passed, it was opposed by environmentalists such as the Delaware Audubon Society which said it would revive a pollution threat in the zone after decades in which nature -- and the economically important tourist trade that is drawn by it -- was protected from the threat of additional air, water or soil contamination.

Critics included Kenneth Kristl, an environmental law professor at Widener University Delaware Law School, who now says the regulations have the potential to lessen the law’s negative effects.

“If DNREC is truly open and committed to following what the RAC recommends, then maybe – maybe -- a set of regulations can be developed that addresses some of the concerns raised about HB 190 in the first place,” Kristl wrote in an email.

But if DNREC allows business interests to dominate, or simply follows its own agenda, the committee would just be for show, and the law could do environmental damage, he said.

Still, the RAC is the process that will be used, so people should pay attention, and raise their concerns “early and often,” Kristl said.

The Coalition for the Coastal Zone, which represents civic and environmental groups, welcomed the two community meetings so far but urged DNREC to hold at least two more, at Claymont and in the Route 9 corridor, to hear from residents who live near CZA sites in those communities.

“In order to get a true feeling from the community, there needs to be a meeting in the community,”  said Garrison Davis, a spokesman for the coalition. “It’s not enough to put us in a room and let us speak. Now we want to know that we are being heard and our ideas are being implemented.”

Amy Roe, another environmental campaigner, said she declined DNREC’s invitation to be interviewed as a potential member of the regulatory committee because of her concern that the interview would be confidential.

James Dechene, a spokesman for the Delaware State Chamber of Commerce, said on Dec. 1 that the group had not yet been asked to join the RAC but expects that it will be. He urged officials drawing up the regulations to avoid any divergence from the new law, which he said is “fairly explicit” about what the regulations should contain

While the updated law passed both houses of the legislature with large majorities, it remains controversial in some sections of the community, and is now subject to a more thorough regulatory process than applies to many other bills, said DNREC Secretary Shawn Garvin.

In an interview after the Wilmington meeting, Garvin said it showed that some critics of the new law are still not reconciled to its passage, and continue to express their opposition.

Garvin extended a public-comment period to Jan. 19 from Jan. 8 after a protest at the meeting from Brenna Goggin of the Delaware Nature Society. Goggin said there would be little time for the public to comment on a report by the Consensus Building Institute, a consultant to DNREC, which is due to deliver a report on the public meetings by Dec. 23, and which facilitated the meetings. The regulations are due to be completed by October 2019. 

“It was clear that there was not enough time” in the original public-comment period, Garvin said.

Jon has been reporting on environmental and other topics for Delaware Public Media since 2011. Stories range from sea-level rise and commercial composting to the rebuilding program at Prime Hook National Wildlife Refuge and the University of Delaware’s aborted data center plan.
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