Following equipment failure at the Delaware City Refinery, which is causing above-permissible levels of sulfur dioxide to be emitted into the air, lawmakers file a bill to increase penalties for pollution violations.
Although the bill is not a direct response to the incident, and has been in the works for over a year, Delaware legislators feel the timing is right to push it forward.
House Bill 210, also known as the Pollution Accountability Act, would increase penalties for pollution violations and require a larger share of those fines be reinvested into the communities most affected.
The bill's sponsor, State Rep. Larry Lambert (D-Claymont), says the bill is a product of community feedback from Justice 40 Oversight Committee Listening Sessions.
"We haven't updated these fines in years, and as a result, many polluters aren't paying anywhere close to the true cost of the harm they've caused. This bill is about holding them accountable, preventing future harm, and getting money and resources back into the communities that are most impacted," Rep. Lambert said in a statement.
Under the legislation, a chronic violator, an oil pollution violation and a hazardous waste violation could all be fined up to $40,000 a day compared to current fines, which range from $10,000 to $25,000.
The bill would also increase the share of penalty funds deposited into the Community Environmental Project Fund from 25% to 40% — with priority given to areas within a 2-mile radius of the violation — and the remaining 60% will be used for environmental enforcement and regulation.
While that bill begins making its way through the legislative process, Delaware Department of Natural Resources and Environmental Control (DNREC) Secretary Greg Patterson says the department will conduct a complete investigation and fine the refinery accordingly based on the recent incident.
What happened at the Delaware City Refinery and when the incident will be resolved
The Delaware City Refinery has been emitting excess levels of sulfur dioxide for almost two weeks due to the failure of its primary pollution control device.
On May 25, the refinery developed a water leak in a carbon monoxide boiler, which Delaware City Refinery General Manager Mike Capone explained was so severe that the emission control boiler could not continue to operate.
A backup incinerator kicked in following the failure, but combustion from the system is causing sulfur dioxide emissions.
The standards set by public health experts for human exposure to sulfur dioxide is 75 parts per billion over an hour of exposure.
Sec. Patterson says for most of the time since the backup system kicked on, the hourly sulfur dioxide reading at the Route 9 monitoring site has been zero or less than two parts per billion.
The highest sulfur dioxide reading thus far was at 6 a.m. on May 31 at 25 parts per billion.
Sec. Patterson explains there are two different sulfur dioxide measures DNREC is monitoring in this situation.
While the refinery's potential environmental violation will be based on how much excess pollution the facility has been emitting into the air, DNREC determines if the excess pollution is a public health threat based on the measure of sulfur dioxide at the ground level.
"What is going up that is not supposed to under the terms of the refinery's permit, that will be dealt with as an environmental violation possibly, but what we also have looked at and why we have said that there is no public health impact is monitoring on the ground, and you can look at those numbers on our website in real time. But it is a serious environmental incident that we will investigate," Sec. Patterson said.
Capone says a repair team is working "around the clock" to fix the broken boiler and the repair is expected to be completed later next week.
Communication gaps and next steps
DNREC runs the Delaware Environmental Release Notification System (DERNS), which alerts members of the public who have opted in when pollutants exceed permitted thresholds.
DERNS did send out an alert at 11:30 pm on May 25 when the sulfur dioxide emissions were detected, but Patterson says some emails did not go out as they were supposed to.
"There are some problems with DERNS. DERNS is an 18-year-old system, and it can be hard to subscribe to, hard to understand and sometimes it doesn't work the way it's supposed to. We've been looking at it this week, and it has issues that we now know we need to upgrade or fix, and we will do this," Patterson told community members during Thursday night's town hall.
But Sec. Patterson, members of the community and Capone remarked that it should be up to the refinery to communicate directly with the public when violations like this occur. Right now, the refinery is only mandated to report incidents to DNREC.
“The responsibility for communicating with your local community should not be DNREC. If somebody is hearing something, whether it's a permit that's being applied for or a release, if they're hearing first from DNREC, then you're already a little behind the ball," Sec. Patterson said. "We want to communicate with the public, but we very much believe that the facilities should have communication, and that's I think one of the things that will come out of this meeting."
"The single biggest failure that I see in this incident is our failure to communicate effectively with the community. That's really behind a lot of the anger that you are all experiencing — we did not give you the answers that you deserve," Capone said to community members. "I recognize that. I regret that I did not fulfill that, and we'll fix that. We are going to commission a team of our Community Advisory Panel to talk about how we do that."
What do community members have to say
During Thursday's packed town hall meeting, several members of the community announced they felt more at ease about the incident after miscommunication around health threats to the public were cleared up.
But public reception about the refinery and environmental regulations as a whole appeared split as residents voiced their opinions.
"I just want to remind everyone that this refinery is not the big, awful, ugly neighbor. They're actually a very good, kind and donating neighbor and that we all should work together," one woman said. "I'm not saying that we should ignore things, I just think we should all work together."
But not everyone feels the refinery deserves the same compassion, like Delaware City Resident George X.
"If they're not going to uphold their part of the deal, and that is protecting us, then the state has to step in. It should be no question about DNREC — or whoever is going to represent us — to step in because you got to stop these bullies from doing this. This is not something that just [happened] in Delaware City. We've been dealing with this for over 50 years," X said.
Several members of the community expressed concerns over the community's health risk, particularly pointing to cancer rates. Some residents even interjected periodically to call for the refinery to be shut down.
One Middletown resident said while he understands the necessity of the refinery's work, he believes fines are not enough and wants DNREC to encourage safer and better standards of practice.
"I want a tiger team to go out there and find a plant that's doing it right, and then bring that back to Delaware," he said. "And what I'm expecting from the [secretary of DNREC] is that you have your foot on their neck to do that. And every day that they don't, there should be two commas involved in the fine."
New Castle County Councilman Kevin Caneco, who previously expressed concern over the ongoing chemical emissions, released a statement saying he still does not feel satisfied following the town hall.
“What we heard tonight from the refinery and DNREC was not accountability, but excuses, and band aide fixes. We need to work together with our state partners for regulation reform in order to put a stop to the unpermitted emissions poisoning our residents," the statement reads.
Speaker of the House Melissa Minor-Brown (D-New Castle) says in addition to the Pollution Accountability Act, she is already thinking of further ways to bring justice to the affected communities.
"I think tonight made it clear the community felt like they were left in the dark, I think the refinery admitted that, and I think we've got some work to do moving forward," Speaker Minor-Brown said at the close of the meeting. "I don't think this is the last time we all come together, hopefully not for an incident, but to have conversations around the future of the areas we live in."
