Delaware City Refinery biofuel opponents to judge: Make the state do its job

Two community groups claim state officials are ignoring a court order by refusing to schedule a new hearing for their appeal of the Delaware City Refinery's plan to expand its biofuels operation.

The Delaware Audubon and the League of Women Voters of Delaware — which won a ruling in January that kept their appeal alive — are asking the court to once again step in and force the Coastal Zone Industrial Control Board to meet for the first time since early 2017.

"We still don't have a resolution nearly a year after winning our case," said Ken Kristl, an attorney who represents the civic groups. "State boards have a mandate and a legal responsibility to carry out their duty and that's what we're asking the court to make sure happens in this case."

Richard Legatski, chairman of the Coastal Zone Board, said scheduling a meeting has been "logistically difficult."

"It's very hard to get a loosely organized nine-member board to get a quorum together," he said. "I have not seen the complaint but the Attorney General's Office is in the process of contacting all nine members now to get some dates together."

A spokesman for the Delaware Department of Natural Resources and Environmental Control indicated the nine-member board also had vacancies over the last year. Those open seats do not appear to have prevented the board from meeting, however.

The list of board members on the board's website was updated Thursday after The News Journal pointed out it was at least two years out of date.

The new list shows only two of the five gubernatorial appointees to the board have changed — one confirmed by the state Senate in March and the other in June. Four other seats are tied to specific positions that have not gone vacant long.

Former state Sen. Karen Peterson, for instance, became a board member in late October when she was appointed chairwoman of the New Castle County Planning Board. The seat previously had been filled by an acting chairwoman.

"I contacted [the board] about a month ago," Peterson said Thursday. "They did tell me they had a case that had been remanded. They took my contact information and said they would let me know when a meeting was scheduled but I haven't heard anything since then."

Peggy Schultz, land use and transportation chair for the state League of Women Voters, said she hopes the courts will get the board to finally schedule a hearing.

"They say the wheels of justice turn slowly," she said. "But they are supposed to turn."

The complaint filed this week marks the latest development in a three-year legal odyssey over the refinery's efforts to significantly increase the amount of ethanol it handles at its 5,000-acre facility.

That fight is part of a long-running struggle between local environmentalists and one of the state's largest industrial employers over the Coastal Zone Act, Delaware's landmark environmental law.

Refinery owner PBF Energy first proposed the $7 million Ethanol Marketing Project in mid-2016. At the time, the company said the project would allow it to receive and store up to 10,000 barrels of ethanol a day before shipping the fuel additive to other facilities along the East Coast. 

The refinery now brings in about 2,000 barrels per day, all of which is blended with gasoline produced at the facility.

Under the federal Renewable Fuel Standard law, petroleum refiners need to blend increasing amounts of corn-based ethanol into the gasoline and diesel they produce or purchase expensive credits to meet those requirements.

The Ethanol Marketing Project would allow the Delaware City Refinery to add a side business by becoming a depot for ethanol coming in by train from the Midwest.

PBF argued that adding the ability to sell unblended ethanol to other refineries would be crucial for the plant to “remain economically viable in the highly competitive refining industry." The project would create no new permanent jobs at the facility, however.

Environmentalists argue the project is yet another step in what they see as PBF’s plan to transform the refinery into a hub-and-spoke transportation business — a shift they say violates the Coastal Zone Act.

Passed in 1971, the act specifically sought to protect the Delaware Bay and the state's shoreline by barring new heavy industrial development from a roughly 2-mile-wide ribbon that runs the length of the state's 115-mile shoreline.

Industrial operations in existence at the time of the act's passage, such as the 60-year-old Delaware City Refinery, were allowed to continue operations.

Those facilities are required to seek a new permit from DNREC before expanding beyond their grandfathered uses and boundary lines.

Over the objections of environmentalists, DNREC in late 2016 affirmed that the refinery's Ethanol Marketing Project is consistent with the state's Coastal Zone Act.

The Audubon and the League petitioned the industrial control board to overturn DNREC's approval but their appeal was tossed after the panel ruled the two civic groups did not have legal standing because they could not show their members would be impacted by the project.

The actual merits of their opposition were never considered.

The civic groups challenged the board's decision before Delaware Superior Court Judge Diane Clarke Streett, who found the board erred by failing to consider whether an increase in ethanol shipments at the plant "could or would increase the risk (and fear) of explosion ... or whether any increased risk could be redressed."

In January, Judge Streett ordered the industrial control board to reconsider the groups' appeal. But 11 months later, they are still waiting for a hearing to be scheduled.

Officials at PBF Energy did not respond to questions about whether the Ethanol Marketing Project is fully functional.

There are several indications that the appeal might be too late.

DNREC amended several permits in late 2017 that would allow the project to move forward. A press release issued by the company in April states that the equipment used in its ethanol operations at the refinery had been sold to its sister company PBF Logistics.

Kristl said he believes the project has become operational, even though the permit is still being litigated.

"They seemed pretty intent on doing that when we appeared before the board in 2017," he said. "If it's later determined that the permit should not have been granted, the refinery will just have to deal with the consequences, whatever they are."

Contact reporter Scott Goss at (302) 324-2281, sgoss@delawareonline.com or on Twitter @ScottGossDel.

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