Delaware Coastal Zone bill voted out of House commitee

The News Journal · June 7, 2017 · Scott Gross

A controversial proposal to amend Delaware’s landmark environmental protection law for the first time in its nearly 50-year history cleared a major hurdle Wednesday.

The House Natural Resources Committee voted 9-1 to advance the measure following a two-and-a-half hour hearing. About 40 people testified during public comment even though the hearing started 90 minutes late.

“I wasn’t really surprised,” state Rep. Ed Osienski, D-Newark, the bill’s chief sponsor in the House, said after the committee vote. “We had a good response from business representatives and labor and construction.”

The bill now moves to the full state House of Representatives for a vote that could come as early as next week.

Praised by business groups and reviled by environmentalists, House Bill 190 seeks to encourage redevelopment of 14 current and former industrial sites along Delaware’s coastline by easing restrictions in the state’s Coastal Zone Act.

Some of those sites are vacant and some are in active use, but all have hosted heavy industry and are contaminated with varying degrees of pollution.

Proponents of the bill argue the measure would create an avenue for businesses to clean up those parcels and open new factories that could employ hundreds.

“It’s the economy, stupid,” said David Swayze, a high-powered lobbyist who represents Sunoco, which owns one of the 14 industrial sites. “We have sufficient environmental controls at the sites and we have the tools going forward to see that continues.”

A coalition of more than two dozen environmentalists and civic groups, however, signed a letter this week urging legislators to withdraw the bill to allow for more research and “an open public dialogue.”

“We can have in Delaware a stakeholder process and multiple town halls around the legalization of marijuana, about budget concerns and what we’ll provide for education,” said Brenna Goggin, director of advocacy at Delaware Nature Society. “But we cannot have one hour dedicated to Delaware’s foundational environmental legislation?”

Passed in 1971 under Republican Gov. Russell Peterson, the act specifically sought to protect the Delaware Bay and the state’s shoreline by barring new heavy industries from locating within a 2-mile-wide strip of land along the state’s 115-mile coast, both sides of the Chesapeake & Delaware Canal, and a ribbon around Delaware’s Inland Bays.

Industrial operations in existence at the time the Coastal Zone Act became law – including all 14 sites identified in the legislation now before the General Assembly – were allowed to continue their grandfathered functions.

The grandfathered protections remain in place for two years after the businesses cease operations and can be renewed only if the property is reused for the same purpose, such as when PBF Energy was allowed to restart the shuttered Delaware City Refinery in 2011.

HB 190 would create a new permitting process that proponents say would open an avenue for five currently vacant sites and nine others still in operation to eventually be redeveloped for some other heavy industrial use. All but one of those sites are in New Castle County.

The bill also would allow present and future occupants at nine sites with piers in place before 1971 to move cargo such as crude oil or raw chemicals from ship to shore and vice versa, otherwise known as bulk product transfer – an operation expressly banned in other parts of the Coastal Zone.

Gov. John Carney made reforming the Coastal Zone Act a central part of his campaign platform and called on the Legislature to pass a bill this session.

DNREC Secretary Shawn Garvin on Wednesday said his department also supports putting the sites back into productive use in a way that supports the economy and the intent of the Coastal Zone Act.

“I think this bill… provides us that path forward,” he said.

Opponents, however, argue the measure would gut the original act while having a negative impact on the state’s air and water quality. They also say the measure would increase the risk of rail accidents and hazardous material spills along the Delaware River, endangering the very coastline the act was created to protect.

They also claim the underlying premise of the bill is flawed, pointing to the decades-long decline of heavy industry throughout the country.

The cost of cleaning up the polluted sites, along with measure in the bill that would require new companies to offer financial protections against disaster and action plans for sea level rise, would make the sites too cost prohibitive to attract investors.

However, officials with the Delaware Economic Development Office said they have worked with 36 potential projects at the 14 proposed sites over the last five years.

“All selected locations outside of Delaware due to the concerns and perception of high risk associated with the Coastal Zone,” said Cerron Cade, Carney’s former campaign manager and the acting director of DEDO.

State Rep. John Kowalko, D-Newark, said he does not believe that claim to be true.

“They don’t exist,” he said. “I would love to put them on a lie detector test when they say that.”

Still, Kowalko – who cast the lone vote of dissent Wednesday – said he expects the bill to ultimately pass the General Assembly.

“Everybody is afraid to challenge the chamber of commerce,” he said. “They own this process. They own the House of Representatives and the Senate chamber.”

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