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by Christine Whitehead, Esq.;

Face to face dialogue with decision-makers often illuminates issues. Thus, the CLNCC is grateful that David Small from DNREC came to substitute for Sec. Hughes on the 16th. Small explained that DNREC had to support the amendment to the Consent Decree to give Motiva more time to install regenerative scrubbers because it allowed Motiva to believe it would be given a permit to use non-regenerative scrubbers. Motiva claims to have spent millions in reliance on getting that permit. [Under DE case law, a potential lawsuit might be a consequence, but DNREC routinely warns companies seeking permits that they proceed before getting the permit at their own risk.]

In answer to a question, Small said that DNREC's recent attempts to prevent taking testimony or questions from the floor from public interest groups during a permit hearing and a Coastal Zone permit appeal reflect new enforcement of a long-time unwritten policy in DNREC. He stated emphatically that DNREC has never before tried to silence environmental groups by requiring that they have an attorney present their case. Two years ago the News Journal reported that they did just that with regard to the Sierra Club in a Sussex County permit hearing. When he heard that, he just said that DNREC is working on putting new procedural regulations in writing. We will not have much time to officially complain, and we must do so if they try to make this unacceptable policy permanent. Very few nonprofits can afford attorney fees, so DNREC believes they can silence most environmental critics this way. We cannot let that happen. If they were doing their job, we might not care so much, but in pollution control, they are not.

As for Frank Wheeler, the Motiva Plant Manager, his refusal to answer questions on plant maintenance without consulting his assistant for maintenance was ludicrous. He told us to put our questions in writing and he would return to discuss the answers with us. Most of the crowd was too disgusted by his pretense of ignorance to care what he might come back and say. Many in the audience were stunned to watch his public relations effort to sell us on amending the Consent Decree. We can't imagine why he thinks we are unaware of conditions in his plant and why he thinks we would believe the spin Motiva puts on their attempt to thwart the intent of the Decree. Since Delaware passed a law holding corporate personnel criminally responsible for accidents that cause death, we may never get anyone at Motiva to answer a maintenance question not submitted in advance again.

We appreciate the fact that Alan Muller from Green DE came to try to keep Motiva and the State honest. Alan has researched Motiva's mercury emissions and can counter their arguments that their studies show they do not release any. Alan has been terrific tracking down information on this matter as well as many others. His work is important to the State's future. Green Delaware can always use contributions.

For some reason Motiva has admitted to the press that they do have a problem with PCBs that should not be in their emissions. The original Consent Decree requires that they monitor and report flaring and released, but the fines are inadequate.

Where does this leave us? If the federal District Court refuses to permit an amendment to the Consent Decree, Motiva will have to scramble to meet the deadline in December for one of its units. If the decree is amended, we have to wait two to three more years for relief from their routinely rotten emissions. Their deadly accidental ones will have to be stopped another way.

Lyman Welch of the Mid-Atlantic Environmental Law Center, who represented the Sierra Club in its "friend of the court" brief, told us that they were shut out of the secret negotiations between DNREC and Motiva on amending the Consent Decree.

Why are the people who are supposed to fight to protect us making us fight them? Is it time for a legislative committee investigation into the work of DNREC? Why didn't the Governor, as she promised, put the State watchdog expert in place to oversee what Motiva is doing to improve maintenance?

When Dave Small was asked how much he has collected in fines from Motiva in the past two years, he looked as though collecting those fines never occurred to him, and he could not state that any had been collected.

What is at risk? Clearly the lives of more workers, but what else? Is the Motiva refinery to become another Metachem--abandoned once the equipment has reached the end of its useful life? Are we being strung along until Motiva sells it and gets out from under all possible fines and damages owed? What about the damaged lungs in our community? When will our air be cleaner and free from Motiva's accidents? How can we control the Dragon? These are policy decisions of great importance, and a thorough public discussion of these matters should take place.

by Christine Whitehead, Esq.

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