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The
decision on July 16 apparently clears the way for the oil
company to complete installation of a sulfur-recovery unit at
its Marcus Hook refinery to minimize the need to burn off acid
gases and release sulfur dioxide into the atmosphere after the
adjacent General Chemical plant, which now buys the byproduct
gases, shuts down in September.
The four
environmental groups which appealed the decision by John Hughes,
secretary of natural resources and environmental control, to
issue the permit can still appeal the board's ruling to Superior
Court, but that would not appear likely since they have
indicated they think installing the new unit is a good idea.
Their appeal of the permit included some technical objections
relating to environmental impact, but mostly centered on the
process by which the company's application was considered.
Sunoco
spokeswoman Carol Sloan said the appeal did not hold up
installation of the unit.
"Sunoco has always pursued an extremely aggressive timeline with
regard to this project and expects completion before General
Chemical shuts down," she said. Delaforum
was unable to obtain a response from the environmental organizations on
whether a court appeal will be pursued.
The
sulfur-recovery unit is to be located on the Delaware side of
the refinery, which straddles the Delaware-Pennsilvania border.
The gasses are generated in Pennsylvania.
Before
formally getting down to the substance of the appeal,. the
board, by voice vote after nearly three hours of rambling pro-am
style through discussion and testimony, decided that Common
Cause of Delaware, the Audubon Society and Green Delaware could
not participate in the hearing because they were not represented
by lawyers. Common Cause had filed the appeal and the other two
organizations had joined in.
Before
the vote, Phoebe Young, a deputy attorney general who serves as
the board's lawyer, cautioned that, whatever way the vote went,
that decision could be grounds for appealing the ultimate
ruling.
The board
did accept John Kearney, of the Clean Air Council of Delaware,
as a legitimate party because he had joined the Common Cause
appeal as an individual and not as a representative of his
organization.
That
distinction resulted in some heated exchanges between officials
of the appealing organizations and lawyers for Sunoco and the
Department of Natural Resources & Environmental Control.
Sunoco's
lawyer, David Swayze told the board that such braches in
courtroom-style decorum were the reason why the Delaware Supreme
Court had issued a ruling that only a licensed attorney could
"engage in the practice of law" before an administrative body.
"If there is any better reason for [the ruling], I don't know
what it would be," Swayze said.
Kearney
countered that the ruling "was not intended for high-powered
corporations to use against the little guys." He argued that the
Coastal Zone Act itself specifically provides for individual
members of the public to participate in the permitting process.
Maryanne
McGonegal, of Common Cause, testified that the basis of that
organization's objection to granting the permit lay in the
department's having changed the 'ground rules' for the public's
participation in public hearings just before conducting a
hearing on Sunoco's permit application.
She
characterized that and the subsequent secretary's decision as an
effort by the department to "shut out the public" from
environmental decision-making. Its joining in the 'lawyers-only'
argument as grounds for dismissing the appeal amounted to "conspir[ing]
with the attorney for Sunoco to prevent a discussion of
substance" before the board, she charged.
McGonegal
said Keith Trostle, the deputy attorney general representing the
department, attempted to block her access to the record of the
public hearing prior to the appeals hearing. She was able to
examine it only after invoking the state's Freedom of
Information Act and then found the folder to be "nothing but a
mess, entirely out of order."
Trostle
said the public record was, indeed, made available and that it
had been presented to the board on the day after the appeal of
the secretary's decision was filed.
Board
chair Christine Waisamen said she had not seen the record and
Young said it had not been delivered to her, in her capacity as
attorney for the board, in timely fashion.
As the
board painted itself into a parliamentary corner with a series
of parliamentary motions, some of which were seconded and voted
upon and others which were not, board member Victor Singer
attempted to straighten out the process with a series of
stepwise motions. At one point Singer, who is on the appeals
board by virtue of his position as chairman of the New Castle
County Planning Board, actually conducted the vote on one of his
motions.
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