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Vic Singer   August 12, 2008

The hot dip galvanizing plant to be built on 5.5 acres of the former Amoco site on Route 9 in New Castle will dip objects as large as truck trailers into tanks of molten zinc (melt point 788 degF) to produce corrosion protective coatings. The site is in Delaware's Coastal Zone.

Delaware's Coastal Zone Act defines "manufacturing" as the mechanical or chemical transformation of substances into new products using power-driven machines and materials handling equipment, and/or assembling component parts of manufactured products that are not structures or other fixed improvements. The CZA defines "heavy industry" as a land use characteristically larger than 20 acres, involving equipment such as tanks, chemical processing equipment, pickling equipment, etc. that "although conceivably operable without polluting the environment, has the potential to pollute when equipment malfunctions or human error occurs." The galvanizing plant will house these three types of equipment, and will use large quantities of hydrochloric acid for pickling operations.

The CZA absolutely prohibits heavy industry not yet operating when the Act became effective in 1971, and that is not an expansion or extension of such a "grandfathered" activity. But the expansion or extension requires a Coastal Zone Permit.

Many of us would regard activity involving large quantities of liquid zinc at 788 degF or higher and large quantities of hydrochloric acid, as heavy industry. But the site area is only 5.5 acres. The definitions in the CZA allow DNREC to regard the galvanizing plant as heavy industry. Instead, as is also allowed, DNREC chose to regard it as manufacturing, thereby escaping from the absolute prohibition while still requiring a Coastal Zone Permit.

In its Status Decision - - the first prescribed regulatory step, that merely declares the activity to be or not to be subject to the CZA - - DNREC said: "The proposed activity inside the building will meet the definition of manufacturing as defined in the Act. However, the activity will not meet the definition of heavy industry use found in the Act."

And the DNREC Hearing Officer's Report that led to the Permit Decision - - the second regulatory step - - said: ". . . [T]he proposed use would not be a 'heavy industry use' because the proposed size and manufacturing characteristics are more like a coating or painting process than the heavy industry manufacture of steel and other products contemplated by the CZA's definition of 'heavy industry use. . .' "

The US Census Bureau maintains the North American Industrial Classification System - - NAICS - - (used in the US, Canada and Mexico) that replaced and updated the SIC (Standard Industrial Classification) system that was used when the CZA was written. The NAICS categorizes each industrial activity by a six digit number, the first few digits describing general categories; the later digits are successively more specific. Many zoning codes make use of the NAICS categories to distinguish among various land uses, like the heavy industry/light industry distinction. Neither the NAICS nor the SIC classifications were written into the CZA, so DNREC isn't obligated to use them.

It is interesting, however, that NAICS numbers were NOT cited in either the Status Decision nor the Permit decision. Nor are citations of prior judgments by DNREC or other regulators cited to give more weight to the heavy industry/light industry decision. It appears that DNREC's decision was based solely on the judgment of DNREC staff.

Exploring a nearby application of NAICS ratings, New Castle County's Unified Development Code (UDC), is instructive. According to UDC Section 40.33.270 C, Heavy Industry includes primary metal manufacturing (NAICS 331). And the NAICS website includes within that category, NAICS Code 331111 "Galvanizing metals and metal formed products made in iron and steel mills."

Further, according to UDC Section 40.33.270 D, Light Industry includes fabricated metal product manufacturing (NAICS 332). And the NAICS website includes within that category, NAICS Code 332812 "Galvanizing metals and metal products for the trade."

So according to New Castle County's UDC, the galvanizing plant will be a light industry land use because it isn't in a steel mill. It will occupy a parcel with heavy industry zoning, which is lawful according to the UDC. But the CZA is not subservient to the UDC; rather, the UDC is subservient to the CZA.

Speculations are always possible on what other reasons there could have been for DNREC's decisions on the galvanizing plant. Any of us might have weighed the relevant facts otherwise, and different decisions might have been better, all things considered. But DNREC's decisions appear to be within the latitudes allowed by the CZA, and can be defended on other considerations that DNREC probably didn't rely on.


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