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VANE LINE BUNKERING STATUS DECISION APPLICATION
Vic Singer   February 19, 2008

PREFACE:
Since March 2008, the New Castle County Planning Board Business Meeting Minutes have been posted at the County Land Use website. As public records, prior and later meeting minutes (and recordings of recent meetings) have long been available for those who visit to the Land Use Department and ask to read or hear them. Hearing transcripts and recordings are also available to visitors.

The Bylaws of the New Castle County Planning Board provide opportunities at the monthly Business Meeting for a report from the General Manager of the Land Use Department and another report from the Board Chairman. Usually the Minutes summarize these reports. In February 2008, because of the length and depth of what Chairman Vic Singer wanted to say, he prepared his report in writing for distribution with the draft Minutes of the prior Business Meeting. That report, dated 2/19/2008, follows.

INTRODUCTORY REMARKS:
You are probably aware that among the provisions of the the Delaware Coastal Zone Act (CZA), a nine member Coastal Zone Industrial Control Board (CZICB) is established. Five are appointed by the Governor (with State Senate concurrence), and the other four are the three chairmen of the County Planning Boards and the Director of the Delaware Economic Development Office. The CZICB meets quite rarely, almost exclusively to hear and decide appeals from administrative decisions by the DNREC Secretary.

Because my service as a CZICB member is an outgrowth of chairing this Planning Board, I have always used the Chairman's Report at the business meeting following a CZICB activity, to apprise the Planning Board of that activity. The most recent prompt for such a report is the end of the further appeal period following a Delaware Superior Court decision on a DNREC appeal from a CZICB decision. Since its implications are far-reaching, I’m sending an advance copy of the Chairman’s Report for the FEBRUARY meeting along with the draft minutes of the January business meeting. This report is FOR YOUR INFORMATION ONLY. Those who may be so inclined are invited to read it and initiate further discussion.


IMPLICATIONS OF DELAWARE SUPERIOR COURT DISPOSITION OF DNREC’S APPEAL FROM CZICB’S REVERSAL OF DNREC SECRETARY’S STATUS DECISION ON VANE LINE BUNKERING STATUS DECISION APPLICATION

In our governance system, the words of laws adopted by appropriate legislative bodies mean whatever appropriate courts say they mean. Those discomforted by the court’s interpretations may appeal timely to higher courts, and failing there, may further appeal to appropriate legislative bodies to change the words in the laws, the changes becoming effective subsequently but not retroactively.

In DNREC et al v. Vane Line Bunkering, Inc, et al. 06A-12-001-ESB, Letter Opinion (Nov.16, 2007), whereby the Superior Court reversed the Coastal Zone Industrial Control Board’s reversal of the DNREC Secretary’s decision on Vane’s Status Decision Application under the Delaware Coastal Zone Act, on Vane’s appeal therefrom, the Superior Court declared that:

  • “The [Delaware] Supreme Court held that the ‘transfer of bulk quantities from vessel to vessel’ is included in the definition of bulk product transfer facility [in the Coastal Zone Act]. The type of bulk product being transferred . . .[is] . . . irrelevant to the Supreme Court’s holding.” (Ref.Page 9 lines 7 through 11)
  • “The Coastal Zone Act prohibits bulk product transfer facilities in the coastal zone unless they were in operation on June 28, 1971.” (Ref. Page 4 lines 7 & 8 with footnote references to 7 Del. C. § 7003 and the Coastal Zone Regulation)
  • “§7004 states that any nonconforming use in existence and in active use on June 28, 1971 shall not be prohibited by this chapter and all extensions or expansions of nonconforming uses shall only be allowed by permit . . . [making] . . . clear that the expansion or extension of the facility is governed by the permitting process. . .A non-conforming use is a bulk product transfer facility that was in operation on June 28, 1971, and . . . [its] . . . expansion or extension . . . is governed by a permitting process. . . . The . . . question is whether Vane’s proposed bulk product transfer facility was in operation on June 28, 1971. The answer is ‘no.’ §7003 and [the Regulation] prohibit all bulk product transfer facilities in the coastal zone unless they were in operation on that date.” (Ref. Page 7 lines 3 through 19)
  • “. . . Vane proposes to lighter oil with two to-be built 145,000 barrel tank barges. Thus Vane’s oil lightering operation is certainly ‘new’ in the sense that it does not yet exist.” (Ref. Page 8 line 18)
  • “Vane does not own an oil lightering facility that was in operation on June 28, 1971. Indeed it merely proposes to build a new oil lightering facility now.” (Ref. Page 10 lines 19 through 21)
  • “It is only that other entity [that was operating an oil lightering facility on June 28, 1971], or that other entity’s successor in interest like Maritrans, that can operate the oil lightering facility now.” (Ref. Page 11 lines 1 through 3)
  • “§7003 prohibits all bulk product transfer facilities in the coastal zone unless they were in operation on June 28,1971.” (Ref. Page 11 line 22 and page 12 line 1)

The period during which an appeal to the Delaware Supreme Court would have been timely has ended.

During the CZICB hearing on Nov 16, 2006, Vane’s counsel agreed that “. . . if there is an increase in volume [of oil lightered in the bay] a permit would be required. . .” (Ref. Transcript page 55 lines 21 to 24) Further, DNREC’s counsel acknowledged that DNREC monitors activities at Big Stone Anchorage under its air quality regulations but not under the Coastal Zone Act, the Coast Guard keeps track of vessel traffic but there aren’t communications between DNREC and the Coast Guard, and that he didn’t know if there has been an expansion of the volume of lightering activity since 1971. (Ref. Transcript page 81 lines 10 to 24 and page 83 lines 11 to 24)

Still further, DNREC’s counsel acknowledged that since henceforth forbidden activities ongoing in 1971 were beyond the reach of the act or regulation but expansions or extensions of such activities were permissible only under permit, DNREC is obligated to monitor expansions or extensions; but DNREC doesn’t have a record of the quantities being lightered. (Ref. Transcript page 100 lines 11 to 20 and page 101 lines 8 to 11) DNREC’s counsel also testified that “because tankers are larger now than they were in 1971, they have deeper drafts and are unable to proceed up the river than the smaller tankers that were used 35 years ago. Therefore, the volume of oil lightered off the tankers coming in the Delaware Bay would be increased.” (Ref. Transcript page 102 lines 8 to 13)

It follows reasonably that any increase in the volume of bulk product transferred at Big Stone Anchorage beyond the volume transferred before the effective date of the Act must, according to the Coastal Zone Act, be regarded as an expansion. Any component of any bulk product transfer facility that was not being operated before the effective date of the Act must, according to the court’s ruling, be regarded as an extension of the protected nonconforming use.

It also follows that DNREC must with deliberate speed establish a date certain, beyond which all oil lightering at Big Stone Anchorage exceeding the volume lightered prior to June 28, 1971, or for the total volume lightered using facilities (including operating staff) that were not thus involved prior to June 28, 1971, will halt unless a Coastal Zone Permit has been issued therefor.

 


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