Coastal Zone Act Delaware Coastal Zone Planning and Regulatory Administration report for the period--June 28, 1971

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Coastal Zone COASTAL ZONE
Information
Center

THE COASTAL ZONE ACT

DELAWARE COASTAL ZONE
PLANNING AND REGULATORY ADMINISTRATION

REPORT FOR THE PERIOD-JUNE 28 1971-JUNE 30, 1973

STATE COASTAL ZONE INDUSTRIAL CONTROL BOARD
AND

DELAWARE.STATE PLANNING OFFICE,

KFD
265
A52
D 3
1973

November 1973

MAI, I

TABLE OF CONTENTS

PAGE

Letter to the Governor, General Assembly, and People

PART I Background

PART 11 Coastal Zone Planning 3

PART III State Coastal Zone Industrial Control Board 6

PART IV- Administrative Procedures 12

PART V Project Applications and Appeals 16

APPENDICES

PAGE

APPENDIX I Coastal Zone Act and Map 50

APPENDIX 2 Administrative Forms and Procedures 65

APPENDIX 3 Definition of Non-conforming Use "Expans'lon or
Extension" 98

APPENDI X 4 Coastal Zone Legal Opinions of the Attorney General 100

r+_
U S DEPARTMENT OF 'COMMERCE NOAA
COASIAL SERVICES CENTER
2234 SOUTH HOBSON AVENUE
CHARLESTON, SC 29405-2413

Property of cSC Library

STATE OF DELAWARE
EXECUTIVE DEPARTMENT
PLANNING OFFICE

]DOVER
SHERMAN W, TRIBUIT DAVID R. KEIFER
DIRECTOR

Governor Sherman W. Tribbitt
Members of the General Assembly
The People of Delaware

On June 28, 1971, by enactment of the Coastal Zone Act, Delaware embarked
on a. major new and uncharted course of State planning and regulatory
management of a unique and vitally important resource - the lands%and
waters of the coastal zone., This bold Initiative placed Delaware in the
forefront of the growing concern of coastal states and the Federal govern-
ment over the wise use and protection of our limited and precious coastal
resources,

In the two years since enactment of the Coastal Zone Act, significant
progress has been made in the establishment and functioning of a Delaware
Coastal Zone Planning and Management System. This first Annual Report
describes the work of the State Coastal Zone Industrial Control Board and
State Planning Of.flce,ln meeting their responsibilities under the Act.
The,perlod covered In thIs'Annual Report Is from June 28, 197 1, through
J une 30, .1973.

With the continuing concern and support of the State Executive and
Legislative branches of government and of local government officials,and
the people of Delaware, the public policy of regulating Industrial
development in order to protect the environmental and recreational values
of the coastal zone can achieve the goal of safeguarding the quality of
life In Delaware.

Respectfully submitted,

David R. Keifer
16,j:- r;e6f6r,

DRK:cb

PART I

Background

Enactment of the Coastal Zone Act was the result of the deep concern

of many people and publicofficlals In Delaware over the likelihood of

Industrial growth In the coastal zone resulting In a large new petroleum

-refinery and a deepwater terminal for supertankers and related heavy

Industries In areas not yet industrialized. Land ownership and some local

zoning policies Indicated,that such Industrialization was a-real possibility.

The lack of a State policy toward industrial growth in.the coastal zone.and

regulatory authority over it left the State in a position of not having an

effectivei voice In-the use of this uniquely valuable and environmentally

sensitive State resource - the coastal zone.

As a result of this situation and this concern, the Governor appointed a

Task Force on Marine and Coastal Affairs in early 1970 to examine the

situation and advise him on a proper course of action to protect the State's

Interest In use and protection of coastal resources. In Fe6ruary 1971, the

Task Force completed a preliminary report recommending that industries

compatible with high environmental quality standards be encouraged, but1hat

no further incompatible Industries be allowed In the coastal zone. Incompatibility

would be determined on the basis of quantities and types of pollutants and

the magnitude of the environmental effects resulting from the size and nature

of the industry. The Task Force also recommended prohibiting a deepwater

port facility In Delaware Bay. The report,emph8sized the recreational values.

of the coastal zone for Delawareans and for visitors from more heavily'

urbanized nearby states.

Shortly after release of the Task Force Preliminary Report, in the

spring of 1971, the Governor introduced legislation in the General Assembly

(House Bill Number 300) for the Coastal Zone Act which follows recommendations

of the Task Force on Marine and Coastal Affairs as to what it regulates and'

what it prohibits. On June 28,,1971, the Governor signed the Act into law,

(Title 7, Chapter 70, Delaware Code).
OF
Administration of the Coastal Zone Act is the responsibility of the State

Planning Office. Thi s report is designed to serve as a report on activities

under the Act and also to record in one place the law, administrative, pro-.

cedures, Attorney General decisions and project histories.,

PART I I

Coastal Zone.Planning

Coastal Zone Plan

The Coastal Zone act of 1971 requires that the State Planning Office

prepare a comprehensive plan for the coastal zone. Work on this require-

ment began in earnest early.in 19.72 following the establishment of a

Coastal Zone Technical Advisory Committee (TAC). This Committee was

comprised of representatives from appropriate State, county, and regional

agencies, including the county planning offices, the City of Wilmington,

State Department of Natural Resources and Environmental Control and the
College of Marine Studies. The TAC was,charged with assisting the affice

In developing and reviewing various plan proposals.

Work on the plan proceeded during 1972. Various background studies

and bibliographies were prepared during this period with proposed Coastal

Zone Goals and Objectives and various "sketch plan" proposals being

presentedto the Coastal Zone TAC and the Counc H on State Planning In

January, 1973. A Preliminary Coastal Zone Kan was submitted to the TAC,

the Council, and the Coastal Zone Industrial Control Board In May, 1973.

As of June 30, 1973, the Plan was under review and subject to revision prior

to public hearings to accommodate the 'comments and recommendations of the

TAC, Council and Board.

The Preliminary Coastal Zone Plan Is both a land development and

regulatory document. It contains goals, objectives, and development concepts

with application to the zone and to theState in general. It also recommends

specific development policl.es and strategies for the coastal zone, including

a land use plan for the various sub-regions of the coastal zone.

Definition of Heavy Industry and Guidelines for Acceptable Manufacturing Uses
In the Coastal Zone

The Act also requires the Planning Office to promulgate an elaboration

of the definition of heavy Industries prohibited under the Act, and to

establish a system for determining which manufacturing uses would be acceptable

in the coastal zone. To assist in this work, the Planning Office contracted

with Battelle, Columbus Laboratories, a nationally recognized research'

organization. Battellets assignment was to thoroughly investigate Industry

characteristics and processes In order to develop a uniform system for

rating one industry against another in terms of likely impact on the coastal

zone.

More than 400 industry groups were evaluated in terms of: need for

coastal location; pollution potentla[;. unacceptable pro6esses; land and

labor requ-irements; relationship to other Industries; needs for energy and

water; and demands for public facilities.

Development of this data allowed tor a rating system serving two needs,

I.e. allowing for determination of the least desirable industries which should

be banned, and providing a method for reviewing a.n application to determine

its potential impact and assess Its acceptability.

The materials developed by Battelle were presented for review, to the

Coastal Zone TAC, the Council on State Planning and the State Coastal Zone.-In-

dustrial Control Board. These proposals, as of June 30, 1973, were being prepared

in regulation form for public review and official presentati on to the

Industrial-Control Board.

Methodology for Evaluating Env ironmental Impact Statements

Another planning activity during the period was the development of a

methodology for evaluating the completeness and quality of the environmental

impact statement required from each applicant for a coastal zone permit.

The assistance of Battelle, Columbus Laboratories was requested to develop

a matrix and checklist system which could be uniform[ y applied by the

Planning Offi.ce to each statement. This procedure will allow for a more

effective and consistent review of proposals and reduce the risk of

erroneous or Incomplete materials being submitted.

As of June 30, 1973, coastal zone planning activities emphasized

development of a public information and participation program. While the

Coastal Zone Act requires a single hearing on the Coastal Zone Plan and the

proposed definition and guidelines, efforts were underway to stimulate

public input on coastal area issues as well as reaction to the planning

proposals. A series of public forums, public plan summaries, and other

approaches were under discussion by the Planning Office, the TAC and the

Coastal Zone Board.

PART I I I

..State Coastal Zone Industrial Control- Board

For the purpose of providing representation of the public and of county

planning commissions and State agencies concerned with planning and regulatory

matters in the coastal zone, the Coasta I Zone Act established a State Coastal

Zone Industrial Control Board., The authority, functions and make-up of the

Board are described in Sections 7005, 7006 and 700 7 of the Act.

The Board Is composed of ten voting members, Five regular members are

appointed by the Governor with Senate confirmation for terms provided in the

law, except that the Board chairman serves at the Governo r's pleasure. Five

ex-officlo members include the county planning commission chaIrmen of the three

counties, and the.Secretaries of the Department of Natura-I Resources and

Environmental Control and Department of Community AffaIrs and Economic

Development.' The ex-officlo members represent these agencies, therefore,
-the length of their terms is unlimited, althou gh there may be (and have

been) changes 'In.the particular Individuals who fill +hese positions.

Members of the State Coastal Zone Industrial Control Board during the'

period July 1971 through June 1973 have been the following persons:

Regular Members

Dr. George M. Worrilow, Chairman Newark
Mrs. Gwynne Smith Green Acres, Wilmington
Mr. John W. Sievers Dover
Mr. Robert W. Tunnell, Esq. Georgetown.
Mr. 1. G. Burton Milford

Ex-of f Icio Members

Mr. Samuel R. Richeson, Jr. New Castle County Plan. Bd.

Ex-officlo Members (continued) lip
*Dr. Y. Eugene McCoy New Castle County Planning Board
Mr. Brice M. Hickman Kent Co. Regnl. Plan. Comm.
*Mr. Howard L. Papen Kent,Co. RegnI. Plan. Comm.
*Mri G. WallaCerCaulk, Kent Co. RegnI. Plan. Comm.
Mr. Charles Mills Sussex County P-lan. and Zoning Comm.
Sec. John,C. Bryson Dept. of Nat. Res. and Environ. Cont.
*Sec. Austin N. Heller Dept. of Nat. Res. and Environ. Cont.
Sec. John D. Daniello Dept. of Com. Affairs and Econ. Dev.
*Sec. Robert L.-Halbrook, Jr. Dept. of Com. Affairs and Econ. Dev.

The authority and responsibilities of the Board inc.lude three functions:

(1) to review and approve, disapprove or modify regulations governing
permit applications and application and appeals-hearing and other
procedures;

(2) to serve as an appeals board to hear and decide upon appeals from
status and permit application decisions of the State Planner, and

(3) to review and adopt a coastal zone comprehensive plan for manufac-
turing development, guidelines for acceptable manufacturing In the
coastal zone, and regulations for elaboration of the Law's defini-
tion of (prohibited) heavy industry uses.

Staff and office services for the State Coastal Zone Industrial Control

Board are provided by the St
ate Planning Office.

During the period from July 1971, through June 1973, the Board held nine

meetings, other than hearings and meetings on appeals. The first eight of

these meetings were held between August 1971, and February 1972, and dealt

primarl,ly with coastal zone permit and appeal forms, procedures, and fees.

At the September 13, 1971, meeting, the Board voted to establish a
status decision process wherein the State Planner would decide on an applicant's

status under terms of the Coastal Zone Act prior to the full application for a

*A former member of the Board.

coastal zone permit requiring detailed project plans and an 'envi ronmental

Impact statement. The consensus of the Board was that this procedure would

avoid the situation where an applicant would prepare t he full permit

application incurring time and money costs only to be told that his project

was outside the authority of the Coastal Zone Act or that it was a prohibited

,use.

At the December 14, 1971, Board meeting, a definition of "expansion or

extension of non-conforming uses" was adopted see Appendix 3. The Law

allows Industrial uses that were in operation prio,r to and on the date of

enactment-of the Act to expand or extend their operations. Under the adopted

definition, permit applications are required only of those expansion or

extension projects having a "significant" impact on increased production

capaclty@ land use area, or environmental Impact; this decision Is made at the
status de'clslon level (see Part IV of this Report for a .n explanation of

administrative procedures).

After lengthy discussions of administrative forms and procedures involving

numerous drafts during the period September 1971, through January 1972, the

Board voted on February,14, 1972, to adopt the forms and procedures as they

are given in Appendix 2.

During the,course of the first yearls coastal zone administrative

.experience, it was determined that a fee for filing appeals from the State

Planner's status and permit decisions was necessary. At its meeting on

September 27, 1972, the Board voted to adopt an appeals fee of one hundred

dollars. A fee of this amount would discourage frivolous appeals and yet

would not prevent seriously affected and concerned persons from appealing.

The limited appeals experienced since adoption of this fee supports this

opinion.

The appeals experience of the State Coastal Zone Industrial Control Board

is.described in Part V of this Report In the descriptions of the project

applications. To briefly summarize, in the period June.28, 1971 June 30,

1973, the appeals have been as follows:

Appeals from Status Decisions:.

Sun Oil Company of Pennsylvania, September 290 1972

Appeal of the Sta te Planner's decision that extension of a pier
at the Marcus Hook, Pennsylvania refinery is a prohibited offshore

bulk product transfer facility.

The Board1s:appeal decision of November 290.1972, after a public

hearing, upheld the State Planner.

Sun 0i'l, the Board, and the State Planner reached a mutual-agreement

to allow this project to go ahead under the exemption for pier use

by sing,le Industrial facilities In Section 7002(f) of the Law

after Sun Oil agreed in writing to modify its use of the extended

pier. No appeal was made to Superior Court.

Save Our Shores March 2, 1973'

Thi s private conservation organization through Its president

appealed the status decision on the.application of the Sico

Foundation of Mt. Joy, Pennsylvania for a new petroleum tank

farm and improvements to an existing tank farm on property adjacent.
to the Wilmington Marine Terminal. The State Planner had decided

that the tank farm project could proceed without a.coastal zone

permit by reason of it not being manufacturing and being exempt

from prohibition because It was an extension of the'exempt Port of

Wilmington docking facilities. The Board held a public hearing

on this appeal on March 20, 1973. Prior to any appeal decision by

the Board, a mutually satisfactory agreement among all parties was
reached to modify the status decls.lon so that a clear geographic

limit was placed on the exemption of Port of Wilmington docking

facilities from prohibition as.offshore bulk product transfer

facilities. At that point, Save Our Shores dropped Its appeal.

Appeals from Permit Application Decisions

Private citizens on a permit application of.Delmarva Power and

Light Company, September 25, 1972

Three private residents1of Edgemoor appealed the State Planner's.

decision to grant a permit for a new boiler to double the electric

power generating capacity of the Edgemoor power plant of Delmarva

Power and Light. The appellants claimed tha t this was a proh ibited

heavy industry use.. On November 24, 1972, after a public hearing-

on the appeal, the State Coastal Zone Industrial Control Board

upheld the State Planner's decision to grant a permit.

On December 18, 1972, the Board's appeal-decision was appealed

to Superior Court in New Castle County by one of the original

appellants. The Superior Court had not made its decision on

this appeal as of June 30, 1973.

During the two year period covered by this annual report, the Board did

not become Involved with review and adoption of a coastal zone plan, guide-

lines for acceptable manufacturing and refinement of the definition of heavy

industry uses. The State Planning Office with the assistance of a private

planning consultant did prepare draft reports on these matters, as described

in Part 11 of this Report.

PART I'V

Administrative Procedures

Introduction

In the period from enactment of the Coastal Zone Act to mid-February

1972, administrative procedures were developed. It was proposed by the

State Planning Off.ice and approved by the State Coastal Zone Industrial

Control Board that there be three distinct procedural steps for a given

project. These steps are the status decision application, the permit

application and the appeal.,

Status Decision Application

The Status Decision Application step is designed to provide enough

Information to the State Planner so that he can make,an initial decision as

to whether a particu,lar project is prohibited by the Coastal Zone Act,

requVres a permit under-the Act, or is outside the scope of the Act. It was

felt that with a minimum amount of information, this decision could be.made.

Ifthe project Is either prohibited or outside the scope of the Act, the

decision constitutes a final decision on that project by the State Planner

and Is publ.icly advertised so that It may be appealed. If the State Planner

determines that the project is a manufacturlnq@use requ,iring a permit, the

applicant is notified and is given the nece,ssary forms to complete the permit

application.

Early In, the administration of the Act, it became apparent that one-type

of project needed special treatment, namely, the expansion of existing non-

conforming uses. This problem arose because many existing industries, determined,

to modify their facilities either for business reasons or beca,use of requirements

1,2'

for pollution control equipment. This modi,fication could potentially bring

the faci I ity under the regulations of the Coastal Zone Act. However, It

was felt unreasonable to require firms to supply full permit application

documentation for relatively minor projects. In response to this problem,

the State Coastal Zone Industrial Control Board adopted a definition for

the,expansion or extension of a non-co6forming use: "Expansion or Extension

means a change of existing-processes, facilities or buildings which signifi-

cantly increases the production capacity, land use area or environmental

Impact

Status decision applications from existing non-conforming uses are tested

against this definition. if It Is found that the particular project will not

result In a significant increase.in production capacity or land use area or

negative environmental impact, the applicant is informed that he does not

need a permit and that he may proceed with his'projett. This decision Is

publicly advertised. Most projects that have been processed to date, have
fallen Into this category. It Is felt that this procedure should be maintained
so that a project, that while-allegedly being.undertaken for pollution control

measures might result in significant increases in land use for the facility

or In significant production Increases,-can be required to go through the

permit procedure.
All applications for status decision Involving installation of equipment
to meet pollution control standards are routinely submitte.d to the Department

of Natural Resources and Environmental Control for validation of factual

information.

Perml t App I I catl ons
If a status application decision is that a proposed project constitutes

a new manufacturing use or a significant expansion or extension of.a

non-conforming use, the app'licant prepares and submits full'appl.ication

documentation including an environmental impact statement. After the

appl.1cation is submitted to the State Planning Office and reviewed for

completeness, a public hearing is held. The application documents are made

available for public inspection at the State Planning Office and also at the

Planning Commission Office of the County in which the proposed project is to

be located and the public hearing is to be held. Recordings are made of the

hearing and are retained until the project has been closed out.

At the hearings, the applicant makes a presentation of the proposed

project. Other interested persons, are permitted to make presentations and

ask questions- The State Planner or the Chief of Coastal Zone Management

serves as hearing officer a+ these hearings.

The hearing testimony and the application documents are then reviewed

by the State Planning Office staff and when necessary other agencies'

personnel. Within ninety days of receiving the permit application, the State

Planner makes a decision to grant or deny the permit or to grant the permit

subject to project modifications. The applicant is notified of the State

Planner's decision and it is published so that either the applicant or an

interested person can file an appeal with the Coastal Zone Industrial Control

Board. If no appeal is filed within fourteen days of the publication of the

State Plannerls@declsion, that decision becomes final.

Appeals

If an appeal is filed from the State Planner's decision, the State

Coastal Zone Industrial Control Board schedules a public hearing. The appeal

request must be accompanled,by an appeal, fee of $100 which is used to offset,

at least In part, the cost of the appeal.in'cluding advertising and a

transcript of the hearing made by a court reporter. Following the appeal

.hearing, the State Coastal Zone Industrial.Cont,rot Board.renders.a decision

to either uphold the State Planner's decision, overturn his.decision, or

uphold.it with modifications. The.Board has a total of sixty days to make

Its appeal decision.

After newspaper publication of the State Coastal Zone industrial Control

Board's appeal decision, there Is a twenty day period for filing of further

appeals to the Superior Court in the county where the project is located. The

Boardts appeal decision may be appealed to Superior Court by the permit

applicant, by an aggrieved citizen, or by.the, State Planner.-

PART V

Project Applications and Appeals

To July V, 1973, thirty-six projects had been received under terms of

the Coastal Zone Act for the State Planner's decision. These projectsland

the decisions made are described In chronological order in this Part.

Project Number 1 Delaware Terminal Company

On Jul,y 23, 1971, a letter was received by the State Planner from the

President of the Delaware Terminal Company notifyi'ng him.of the Company's

plan to purchase property along the Delaware River south of Naaman's Creek

in Claymont from the Phoenix Steel Corporation for construction of a',tanker

docking facility and petroleum tank farm. Low sulfur boHer fuel for

electric power plants would be unloaded and stored here prior to movement

by pipeline to customers in Delaware and eastern Pennsylva.nia.'

Several alternative plans for docking were proposed by Delaware Terminal

Company requiring a determination by@the Attorney General of the meaning of

the work "offshore" In the definition in-the,Coastal Zone.Act of (Prohibited)

offshore bulk product transfer facilities. This Attorney General's opinion

as well as others made in the course of coastal zone permit administration

are reprodu ced In Appendix 4 to this report.

There was some misunderstanding between the Delaware Terminal Company

representatives and the State Planner as to whether or not the Company was

merely providing,informat'ion or was seeking the State Planner's ruling, or

decision, on a permit. The Attorney for the Company made it clear in a letter

of October 8, 197% to the State Planner that this project was merely being
brought to his attention for informational purposes and that the project was

not ready to go ahead. He and the State Planner agreed that no formal action
under the Coastal Zone Act had been sought. No further,communication from the

Delaware Terminal Company was received. Since that time, the State Planner

learned that this project at the Phoenix Steel Corporation property was

abandoned.

Project Number 2 First State Pipeline Company

Shortly after enactment of the Coastal Zone Act, a project of the First

State Pipeline Company for a supertanker monobuoy mooring 26.5 statute miles

southeast of Cape Henlopen connected by a sea bed pipeline to a crude.

oiltank farm at the southern end of Cape Henlopen State Park between the

Atlantic Ocean and the Lewes and Rehoboth Canal was brought to the State

Planner's attention. The project had previously been the subject of a public

hearing of the Water and Air Resources Commission on September 2.6V 1969, for

a subaqueous @lands permit.

The project's purpose was to enable supertankers of 250,000 deadweight

tons or more to moor and unload imported crude oil for movement to oil refin-

eries In the Delaware Valley by p@pellne from the tank farm near Rehoboth

Beach.

On September 21, 1971, the State Planner requested a complete project

description so that he could proceed with a coastal zone status decision

despite the fact that permit application and other administrative forms and

procedures had not yet been completed and received Board approval. On

September 27, 1971, representatives of the First State Pipeline Company and

associated companies discussed the project with the State'Plannerlin Dover.

Additional Information on the project was provided for the State Planner's

review.

The status decision on the Fi-rst State Pipeline Company project was

given on December 17, 1971; the project was determined to be an offshore bulk

product transfer facility prohibited in the coastal zone. Reference was made

In the decision to a legal opinion of the Attorney Oeneral on November 11, 1971,

supporting this decision. (See Appen.dix 4.) No appeal was filed from this

decision.

Project Number 3 Getty Oil Company

The Getty Oil Company applied for a coastal zone status decision on

August 25, 1971, for Improvements to Its refinery facilities near Delaware

City,. The Improvements were related to air emissions and consisted of a

carbon monoxide boiler on the fluid catalytic cracking unit converting

carbon monoxide to carbon dioxide plus consuming traces of unburned hydrocarbons

and a merox treatment plant to remove organic sulfides from the 61kylation

process eliminating ground odors from spent caustic. The status decision

given on January 20, 1972, was that no permit was required. This was the first

status decision made after adoption by the State Coasta.1 Zone Industrial

Control Board of the'definition of "Expansion or Extension of Non-Conforming

Uses". Under this definition, a permit is not required if there Is no

significant" Increase in'production capacity or plant I.and use area or

(negative) environmental impact from the change of processes, facilities or

buildings of a non-conforming manufacturing use.

There was no appeal.

Project Number 4 Delmarva Power and Light Company

An'application for a status decision on construction of a.new boiler,

to approximately double power generating capacity at.the Edgemoor power

plant Was filed on October 29, 1971, by the Delmarva Power and Light Company-

-The.status decision of November 22, 1971, was that this was expansion of a

non-conformIng manufacturing use of such significant Impact that a coastal

zone permit would be required.

On June 20, 1972, Delmarva Power and Light Company submitted a permit

application. A public hearing on the application was held on July 27, 1972,

by the State Planner at the Mt. Pleasant High School. A coastal zone permit

was granted on September 15, 1972, but was not actually delivered to Delmarva

Power and Light Company pending possible filing of an appeal.

An appeal from the State Planner's permit decision was filed with the
State Coastal Zone Industrial Control Board on September 25, 072, by three

residents of Edgemoor, Del-aware near the plant site. The appeal claimed that

the State Planner was mistaken in granting a permit because the power plant
was a heavy industry use and the large increase in power generating capacity
would be seriously detrimental to air quality in +he region, speci.fically In

terms of sulfur dioxide and.nitrogen oxide emissions.

Prior to the State Plann er's permit dec Ision, Del.marva Pow er and Light

Company had argued that no coastal zone permit should be required for the

building permit
new boiler because construction was started with a Wilmington

wer
before enactment of the Coastal Zone Act and bec ause an electric po

generating-plant Is not manufacturing (a permit.can be granted only for a

manufacturing use). However, the Delmarva Power and Light Company di!d not

appeal the State Planner's status decision of November 22, 1971, requiring

application for a permit.

The State Coastal Zone Industrial Control Board he,ld a public hearing

in Wilmington on November 13, 1972, on the appeal. On November'24, 1972,
the Board upheld the State Planneris permit decision. On December 18,'1972,,

the Board's decision was appealed to Superior Court in New Castle County by

one ofthe original appell-ants. The Court had not made its decision as of

June 30, 1973.

Project Number 5 El Paso Eastern Company

In a letterto the State Plannerffl December 21, 1971, the vicee-president

of the El Paso Eastern Company described a project for a liquified natural

gas (LNG) terminal in New Jersey opposite Claymont, Delaware involving a

pier extending into Delaware waters beyond mean low water on the New.Jersey

side of the Delaware River. The project involved importation of North

African liquified natural gas by tanker, storage and regassification at this

terminal, and shipment by pipeline to customers In the Northeast. The*letter.

suggested that the State Planner examine the-project in the context of 'the

Coastal Zone.Act.

Prior to his status decision, the State Plannersought the Attorney

General's legal advice on this project. On January 20, .1972, the Attorney

General advised that the pier would be a (prohibited) offshore.bulk product

transfer facility and that It was not exempt from'pr6hibition by reason of

the clause In Section 7002(f) of the Law providing for piers or docking
facilities to'be used solely by a-single industrial or manufacturing user.

(See Appendix 4)

On February 23, 1972, the State Planner Informed the vice-president

of El Paso Eastern Company that the pier for the LNG terminal would be a

prohibited offshore bulk product transfer facility. On March 3, 1972, the

Company vice-president replied.that El Paso had abandoned the project a

few days prior to the State Planner's decision and requested a withdrawal

of the status decision saying that he had merely sought Information advice

on the status of the project. The State Planner refused to withdraw his

status decision on March 17, 1972. No appeal was filed, and since@the
project had apparently previously been dropped by the Company, no appeal could

logically have been expected.

Project Number 6 - Sun Olin Chemical Company

This project consisted of construction of a Stretford Sulfur Recovery

Unit at the Sun Olin Chemical Plant In Claymont. This unit would remove

hydrogen sulfide from'a by-product stream.and convert It to elemental sulfur

thus removing sulfur dioxide as an emission to thei atmosphere. Sun Olin was

underorders by the Department of Natural Res ources and Environmental Control

to remove sulfur dioxide emissions in order to meet State air quality require-

ments by January 1973.

The status decision request was received on January 26, 1972, and the

decision was made on March 9, 1972; the decision was that as expansion or

extension of a non-conforming use, this project did not require a coastal

zone permit because it had no significant effect on land use area, plant

production, or (negative) environmental impact. There was no appe al.

Project Number 7 - Hudson Engineers, Incorporated

A status decision application was filed on April 18, 1972, by Hudson.

Engineers, Incorporated of Philadelphia for Texaco, Incorporated. The
project Involved improvement and extension of an existing pier at the Paragon

Oil (A Texaco subsidiary) petroleum tank farm at Claymont. The extended pier.

would.be well beyond the mean high water line and would be an offshore bulk

product transfer faciVity. The Paragon Oil operation Is strictly for petro-

leum storage and transfer, no refinery operations are conducted there.
On .June 30, 1972, the status decision was made, stating that this pier'

extension did not require a permit and was exempt from the prohibition of

offshore bulk product transfer facilities because It came within the "single

Industrial facility" clause of Section'7002(f) of the Coastal Zone Act.

This cla,use exempts docking facilities and piers"used by a single industrial

or manufacturing facility from the definition of bulk'product transfer

facilities.

No appeal was filed.

Project Number 8.- Sun Olin Chemical Company and Allied Chemical
Corporation

Status decision applications were received on April 10, 1972, from Sun

Olin Chemical Company and on May 1, 1972,'from Allied Chemical Corporation,

both at Claymont,,Delaware.for a joint project to construct a pipeline In-

cluding pipeline supports, and a low pressure blower (at Sun Olin). The

purpose was to carry hydrogen sulfide,gas from Sun Olin's main steam boilers

to the adjoining Allied Chemical plant where it would be burned and converted

.to sulfur dioxide and water, becoming part of the sulfur dioxi de gas stream

for the manufacture of'sulfuric acid.

Overall net-air quality would be Improved. Sun Olin sul,fur dioxide emi-

ssions would be less than the emissions level.prior to this project but

slightly more than the standard required by the State in January 1972, which

Allied Chemical had-been ordered to meet.

Both of these plants are non-conforming uses and the status decisions

on this joint project were made under terms of the definition of expansion or

extension of non-conforming.uses adopted by the State Coastal Zone.industrial

Control Board,as an administrative regulation.

On June 28, 1972, the State Plainner.notified the two companies of his
status decisions on this project. The@decisions were to not require coastal

zone permits. There was no significant Increase in plant land use areas from

c ca
constru tion of the pipeline, no significant increas&ln production pacities,

and a net Improvement of air quality when the -amounts of sulfur,dioxide emls-

slons from both plants were considered together.

The Air Resources Section of the Department of Natural Resources and

Environmental Control was aware of thesestatus decision applications and

agreed with the State Planner's evaluation of,air quality impact.

Project Number 9,- Port of Wilmington (Department of Commerce, City of
Wilmington)

The Port of Wilmington, Department of Commerce of the City of Wilmington

filed an application on May 16, 1972, for a status decision on construction

of a petroleum pipeline from a Port docking facility.for petroleum barges

and small tankers across the Wilmington Marine Terminal property and the

Coastal Zone to a tank farm of Customs gauging storage tanks near Commerce

Street on the south side of the Christina River-, Wilmington, thence northward

to Pannsylvania,re-entering the Coastal Zone at Edgemoor. The Port made this

application at the request of a private company, the Gulf Interstate Engineering
Company. The pipeline would carry low sulfur and 'other fuel oil to-electric

power plants In northeastern Delaware and the Philaoelphia,region; at an

indefinite-future time It might also carry naptha.

The status decision was limited to the pipeline within the Coastal Zone.

Pier and docking facilities at the Port of Wilmington are exempt from regula-

tion by Section 7002(f) of the Coastal Zone Act. (See Attorney General's

opinion of November 11, 1971, Appendix 4). The tank farm of Customs gauging

tanks would be outside of the legally defined coastal zone.

On June 28, 1972, the State Planner made his status decision that the

pipeline was outside of'the authority of the.Act. A pipeline Is a means of

transportation, by Itself it is not a heavy industry or a manufacturing use.

The status decision was not appealed. This project was' closely.related to

a later project that came before the State Planner in.January 1973 (see Project

Number 23 The Sico Foundation).

Project Number 10 (State) Department of Natural Resources and Environmental
Control-

Application-for'a,Coastal Zone status decision was made on June 5, 1972,

by the Department of Natural Resources and Environmental Control for th e

Delaware Resource Recovery Demonstration Plant for solid waste removal,and

recovery at Pigeon Point., Wilmington.
The' State PlannWs status decision of June 30, 1972, was that this

solid waste plant would be a new manufacturing use requiring a Coastal Zone
M
permit. 'In addition to reduction of solid waste for removal to the Pigeon

Point landfill, the plant will recycle certain types of organic, metal,,and

glass wastes for re-use. The physical and operating characteristics,of the

plant fit the Act's definition of "Manufacturing".

There was no appeal of this status decision.

No,permit application has yet been formally filed with.1t he State Planning

Office as of July 1, 1973, although a detailed description of t he plant was

provided by the Department of Natural Resources and Environmental Control for

review in the Fall of 1972. In October 1972, the Environmental Protection

Agency awarded a nine million dollar grant to Delaware for this project. The

plant has not gone ahead, however., due to a freeze of federal funds for

projects of.this nature.

Project Number 11 Sun Oil Company of Pe'nnsylvania

A, status decision application was filed on June 15, 1972, by the Sun

Oil Company of Pennsylvania to determine the status under the Coastal Zone

Act.of a project to extend an existing pier at its Marcus Hook, Pennsy'lvania

petroleum refinery partly into Delaware territory. The southern most of three

p.lers would.be extended 2,0201 with 1,1401 of this being-south of the

Pennsylvania Del. aware boundary and-thereby in theCoastal Zone. The pier

would be:used for the unloading of crude.oll and@other petroleum products

both for use within the Sun Oil refinery and to be trans-shipped to other.

customers without undergoing any refining by Sun Oil.. A small part of the

Marcus-Hook Refinery is in Delaware - 16 acres of.a total 403 acres. None

of the existing piers were In Delaware.

The State Planner's status decision of September 14, 1972, was that.the

extension of Pier #3 came under Coastal Zone authority, that It was not exempt,
from regulation under SectionJ002(t) of the Act as a bulk product transfer

for use by a single non-conforming use, that it did not come under

Section 7004(a) allowing for expansion of non-conforming uses by permit, and

that It
was a prohibited offshore bulk product transfer facility in Delaware's

Coastal Zone to the extent that the extended pier would be In Delaware.

Sun Oil appealed the status decision to the State Coastal Zone Industrial

Control Board on September 29, 1972, claiming the State Planner was In error In

making his decision. On November 13, 1972, the Board held a public hearing

on the appeal. On No vember 29, 1972, the Board gave its appeal decision

upholding the State Planner's status decision. The Board found that the

extended pier would be largely a conduit (for trans-shipment) of petroleum

products rather than a facility necessary to operation of the Sun Oil Refinery

the-refining use being the keyto possible exemption of the extended pier

under Section 7002(f) of the law. One-half of the increased unloading capacity.

/after the pier improvement would be for trans-shipment rather than Sun Oil

Refinery purposes. The Board did not agree that the substantially increased.

trans-shipment operations at the-extended pier would,simply be Intensification

of part of an Integrated, combined use, - as Sun Oil had argued rather it

considered this increased trans-shipment capability an entirely new use.

No appeal was filed from this appeal decision. However, Sun Oil

.26

representatives did contact'the State Planner and his legal advisor in the

Attorney General's Office following the Board's.decision to discuss a way for

the pier extension project to go ahead. An agreement was reached by all con-

cerned that If Sun Oil used that part of extended Pier #3 within Delaware

waters solely for its own.refinery purposes and not for any trans-shipment

purposes, the status decision would be cha nged to.exempt this project from
prohibition under terms of Section 7002(f) of the Coastal Zone Act (See

Project Number 28).

Project Number 12 E. 1. DuPont de Nemours and Company

The E. 1. DuPont de Nemours. and Company applied on June 26, 1972, for

a status decision on Its plan to replace the batch-type Sulfate Process by a

modern Chloride Process for production of titanium dioxide.at its Edgemoor,

Delaware plant near the Merchandise Mart shopping center. -Titanium dioxide

is a,white pigment used in paint, paper, ink, plastics, and some cosmetics.

At the time of the application.the Edgemoor plant used.both the Sul.fate and

Chloride Processes. The-project would replace the Sulfate Process with.a new

Chloride Process so that the plant would then be all Chlorl.de.

The State Planner's status decision on July 17,, 1972,, was that this

would be a significant expansion extension of a non-conforming use in

terms of production capacity and possibly in environmental and economic

Impacts...Application for a coastal zone permit was required. Plant

production capacity would increase by fifty percent and there were a number

of environmental considerations involved. The status decision was not appea,led.

On August 10.. 1972, DuPont submitted Its permit application. A public

hearing was held at Mount Pleasant High School on September 11, 1972. After

receiving assu rances-from, the Department of Natural Resources and Envi.ronmental

Control that air and water quality would be Improved as a result of tKis project

and that quality standards would be-met and after examining solid waste, noise,

glare, radiation, and odor effects, the State Planner made his permit decision

on November 6, 1972. The decision was to grant a permit subjectto the condition

that all other applicable State permits would be obtained. There was no appeal

from the permit decision and on November 240 1972, a permit was issued to the

DuPont Company for the-Edgemoor plant changeover to an all-chloride process..

Project Number.13 -,New Castle County Department of Public Works
A status decision application was made on July 13, 197@, by the New Castle

.County Department of Public Works for construction and operation of a-solid

waste pulverizing plant at the Pigeon Point County sanitary landfill site .off
Lambson Lane adjacent to Wilmington. the plant would pulverize up to 1,200

tons per day of various kinds of solid waste Including.household 'refuse, auto

tires, small wooden.crates and boxes, light building construction wastes..,small

furniture, and empty industrial drums. The,pullver,ized waste reducedon an

average to.two-Inch particle size would be deposited by a conveyor system to

the Pigeon Point Sanitary Landfill immediately adjacent to the plant. Non-

@grlndable waste, not pulverized, would be.conveyed directly@to the,landfill.

The All American Engineering Company (AENCO) would build the plant and operate

It and would have title to all ferrous Uron)@metal removed from the waste"by

a separator to be built at a future time (.not part of this status decision

application).

The status decision of J.uly 21, 1972, was that the pulverizing plant

was "manufacturing" requiring a coastal zone-permit. There was no appeal.

On August 17, 1972, a permit application was filed by the New Cas tle

County Department of Public Works., Environmental, aesthetic, economic and

other effects of the pulverizer plant required by I.aw to be considered were

examined by the State Planner in evaluating the.merits@of this'project. A

public hearing on the application was held at Scott Plaza, a State office

building at 1228 North.S.c6tt Street, In Wilmington. On November 15, 1972, a,

permit was granted subject to the condition that all other applicable State

permits would be obtained. The permit was granted with the understanding that

a leachate disposal system satisfactory to the Department of Natural Resource .s

and Environmental Control would be installed. The permit was only for the

pulverizer plant and not for the ferrous.met6l.separator.or compost,unit that

may be bui it at some time. There was no appeal of.this permit decision.

Project Number 14 Regal Development Corporation

Application for a status decision was filed.on July 14,-1972, by the
Regal Development Corporation of Wilmington for a Port Penn Marina. The

projeCtrinvolved a large scale marina 'at Port Penn and the Delaware River

Including about 300 slips for cruising boats, a restaurant, and facilities

for fuel, boat storage and repair, and boat@supplles. A small amount of

subaqueous land was to be leased from the State.

The status decision on the Port Penn Marina was made on July 17, 1972.
The project was determined to be,ou+slde of the authority of the Coastal

Zone Act being of a commercial rather than Industrial or manufacturing" nature

and not Involving an offshore bulk product transfer facility for the commercial

transfer of cargoes, but rather docking facilities purely for use by pleasure

craft. There was no status decision appeal.

P
roject Number 15 Sun Olin.Chemical Company

The Sun Olin Chemical Company of Claymont on August 9, 1972, applied for

a status decision on a project to manufacture liquid carbon dioxide W02). A.

liquefaction facility would be built as an expans ion of the Ethylene Oxide
Unit to purify and liquify approximately 105 tons per day of C02 to be shipped'

by tank truck to customers.

No air or water quality permits were required from the State. A ir quality

would be slight.11y Improved by eliminating carbon dioxide vented to the

atomosphere from the Ethylene Oxide Unit; this was an incidental effect, not a

purpose ofthe project.

On October 4, 1972, the status decision stated that this project was

expansion or extension of a non-conforming use that did not have a significant

Impact in terms of plant production capacity, land use area, or (negative)

environmental Impact. No coastal zone permit was required and the project

was not prohibited. There was no appeal from this' status decision.

Project Number 16.-,Getty Oil Company, Incorporated

The Getty Oil Company applied on August 4, 1972, for a,status decision

on construction and operation of a Beavon Stretford process plant at its

Delaware City refinery to recover sulfur dioxide from its Sulfur Plant tall

gases to enable Getty to meet Delaware Air Quality Regulations for New Castle

County by September 1973. The process would reduce sulfur.dioxideemissions

to the atmosphere and would result in recovery of one-half ton of elemental

sulfur per hour. The Beavon - Stretford process plant would be located within

an existing working area of the refinery@on a small parcel of land (140 x 200

feet.) adjacent to much larger,, more visually prominent operating units and

about 500 feet distant from the nearest public highway.

The State,Planner's status decision of October 41, 1972, for the Beavon

Stretford process plant was that it d.id not requ ire a permit and was, not

prohibited by the Coastal Zone Act. The project Was considered not to be a

"significant" expansion or extension of a non-conforming use in terms.,of

refinery production capacity, land use area or aesthetic impact of the

Beavon Stretford unit, or negative environmental effect. The Department

of Natural Resources and Environmental Control confirmed that this project

would-have a positive,environmental effect by reducing refinery sulfur

dioxide emissions and was being undertaken to meet State air quality require-

ments forNew Castle County.

There was no appeal from the status decisiop.

Project Number 17 Allied Chemical Corporation

The Allied Chemical Corporation applied for a coastal zone status decision

on August 4, 1972, to construct a sulfuric acid storage tank at-its Delaware
Works in Claymont. The storage tank would have a 15,000 ton capacity and

construction would.Include a protective dike, pumps, and,two pipelines to

existing docking facilities. It would be used as a back-up storage facility

to enable Allied Chemical to meet Increased market demand for sulfuric acid.
Although this tank would'have no effect on emissions or effluent compli-

ance, a permit for construction was required by the Water Resources section of

the Department-of Natural Resources and Environmental Control.

The status decision o*f,October 4,. 1972, was that construction of the su'l-

furic acid storage tank and auxi*liary-facilities did not require a coastal

zone permit and was not prohibited. It was an expansion or extension of a

non-conforming use that was not "significant" in its effects on plant produc-

tion capacity, plant land use area, and area aesthetic or environmental

qualities.

There was no status-deci'sion appeal.

Project Number 18 - Allied Cheml cal Corporation

On September 6, 1972, the Allied Chemical Corporation appl.led for a

status decision on an add-on Interstagg absorption system to Its Sulfuric

Acid Plant at its Delaware Works in Claymont. Construction of this system

was part of the plant's emission compliance,prQgram and would reduce sulfur

dioxide emissions from the Sulfuric Acid Plant upon comp letion In September

1973.

The State Planner's status decision 'of October 4, 1972, wds that the

add-on interstage absorption system did not require a permit and was not

prohibited because this expansion or extens'ion of a non-conforml ng use had no

11signi licant" production capacity, land use area, or (negative) environmental

effects.,

No appeal from this status decision was filed.

Project Number 19 Getty Oil Company

A status decision application was filed on September 12, 1972, by the

Getty Oil Company for construction of a low-rate activated sludge (waste water)

treatment.plant to treat effluent water from the refinery processat Getty's

Delaware City petrol.eum.re.finery. The treatment plant would take waste water

after In-plant treatment and primary oil separation; treatment would be based

on the aeration concept used In municipal sewage treatment plants. Excess

sludge.from.,the,treatment plant would be removed to Getty's solid waste

landfill.

According to the Department of Natural Resources and Environmental Control.,

this project would reduce carbonaceous oxygen demand of refinery effluents to the

Delaware River as required by Delaware water-quality stand ards.

The State Planner's status decision of October 4, 1972, was that no

coastal zone permit was required and the was te water treatment plant was not

prohibited. The decision was made according to the "significant" effects test

for expansion or extensi on of non-cohforml,ng uses.

No appeal from this status decision was made.

Project Number 20 - Allied Chemical Corporation'

On October 5, 1972, the Allied.Chemical Corporation applied for a status,

decision for projects at Its Delaware Works In Claymont to construct and,

operate:

(1) a South Pl"ant Treatment System to treat water effluents

from the Hydroflouric Acid Plant, Flourides Plant, and

Alum Plant., The project had the approval of the (State)

Department of Natural Resources and Environmental Control;

and

(2) a Hydroflouric Acid Plant Dry Residue Handling System

to render hydroflouric acid reactor residue neutral, dust.

free, and suitable for landfill disposal. This was approved,

also, by the Department of Natural Res,ources.and Environmental

Control.

The status decision on January 2,. 1973P was that neither project required

a coastal zone permit nor was prohibited. However, the decision was conditional

on a solution satisfactory to the@Department of Natural Resources and Environ-,

mental Control for disposal of Dry Residue solid waste at a suitable site.,so

as not,to endanger surface or ground waters in the coastal zone.

There was no appeal from this status decision.
Project Number 21'- Feralloy Corporation

Approval of the firstmanufacturing plant new to the coastal zone,

rather than expansion of a plant existing there prior to passage of the

Coastal Zone Act, was initiated with a status decision application on

November 27, 1972, by the Feralloy Corporation.of Wilmington. The

project Involved construction of an (approximately) 82,000 square foot

manufacturing plant, on approximately 6 112 acres of land at the New Castle

Industrial Park adjacent to Lambsons Lane near Pigeon Point, New Castle

County. Feralloy Corporation is the wholly owned subsidiary of a West German

company which in turn is owned by the West German government. At the time

of this application, Feralloy operated plants in Baltimore and Wilmington

for the cutting and slitting of semi-finished sheet steel. The Wilmington

plant at the former Dravo Shipyard on the Christina River handled 6,000 tons

per month. The new plant would consolidate Baltimore and Wilmington operations

and would handle 12,600 tons per month initially and 40,000 tons per month by

the end of the 1970's if an additional 80,000 square feet of floor space would be
IF
built at the New Castle Industrial Park. About 65 percent of steel handled

,at the Dravo, Shipyard plant was imported from Europe, about 75 percent would

be Imported to the new plant, the remainder Is American manufactured sheet

steel. At the new plant, 75 percent of the sheet steel would be brought-in

over the WI-Imington Marine Terminal docks, an economic benefit to the Marine

Terminal, Most out-going shipments would be by truck. The plant at the

Dravo Shipyard had forty-one employees with a monthly payroll of about $29,000;
the new plant initially would have seventy-two employees and a monthly payroll of

approximately $51,000.. At full capaci ty by the late 1970's plant employment

would be one hundred and monthly payroll about $75,000.
State support for construction of the new Ferall6y plant.was In the form

of State backing, at less than full faith in credit, of $1,400,000 of revenue

bonds. This support was approved by the (State) Council on Industrial Financing.

Title to the 6 1/2 acre parcel at the New Castle Industrial Park Is with the.
Department of Community Affairs and Economic Development. At the end of the

fifteen year term of the bond Issue.- the State would sell' the land to Feralloy

Corporation for a nominal price; In the meantime real estate taxes to New

Castle County would be paid by Feralloy..

The State Planner's status decision of December 21, 1072, was that the

now Feralloy plant would be manufacturing, not simply a warehouse, and that a

coastal zone permit was required. -This decision was based on the fact that

Over three-fourths of the sheet steel would be cut or slit (cut lengthwise)
and that this type of operation met the definition of manufacturing In the

Coastal Zone Act.

There was no appeal from the status decision and on January 3, 1973,

Feralloy Corporation filed a permit application. A public hearing on the

application was held on January 9, 1973, at Scott Plaza, 1228 North Scott

Street, Wilmington.

The permit decision of January 10, 1973, was to grant the coastal zone

permit for constructio and operation of the initla I (approximately) 82,000

square foot plant at the New Castle Industrial Park. Any further plant

construction will require a new status decision.

Project Number 22 - Amoco Chemicals Corporation

The Amoco Chemicals Corporation applied on December 12, 1972, for a

coastal zone status decision for an Atactic Recovery Unit at its.New Castle

Polymer Plant on Route 9 south of the City of New Castle.

The plant produces homopolymers and copolymers. An unavoidable by-

product of this production Is atactic, a non-crystalline form of polypropy-
'Iene. Most of this atactic must be disposed of as a waste product to 'a

landfill, a small amount can be sold commercially. The Atactic Recovery Unit;

if successful, would demonstrate the commercial feasibility of converting

atactic from homopolymer production to a more saleable form. The benefits to

Amoco would be an Increase in a saleable by-product and consequent reduction

of.costs to dispose of unsaleable waste atactic. Need for landfi-11 space

would also bereduced.

On January 2, 1973, the State Planner made his status decision. No

permit was required. and the Atactic Recovery Unit was not a prohibited use. The

project was not "significant" expansion or extension of a non-conforming use

in terms of plant production or land use area, or aesthetic or environmental

impacts. There would be no increase in production of homopolymers or copolymers

and no increase in emissions or effluents.

Project 23 Sico Foundation

On January'8, 1973, the Sico Foundation of Mount Joy, Pennsylvania filed

a status decision application.for construction and operation of petroleum tanks

and pipelines on its property adjacent to the Wilmington Marine Terminal.

The Sico Foundation owns approximately 52 acres of which about 20 acres

Is currently used by Its subsidiary, the Sico Company, for a petroleum tank
farm utilizing the petro'leum pier at the Marine Terminal for its docking

facility to offload incoming petroleum products brought by barge. The remainder

of the 52 acres is now vacant. The project tailed for leasing of approximately

26 acres of the vacant land from the Sico Foundation by Energy Transporters,

Incorporated to construct several large petroleum storage tanks for low sulfur

fuel to be transported by pipeline to electric power plants and industrial

customers In the Delaware Valley. In addition, the Sico Company would build

one new storage tank and improve a number of old tanks to meet federal occu-

pational safety standards at the existing Sico, petroleum tank farm. There

would be a 3x increase in storage capacity to 1,050,000 barrels capacity.of all

tanks, old and new,.on the Sico Foundation property. The Marine Terminal

petroleum pier would be considerably improved at the expense of Energy

Transporters, Inco rporated. A new thirty inch pipeline.from this pier to

its new tank farm would be built by Energy Transporters, Incorporated and part

of the existing pipeline from the pier to th.e Sico tanks wou,ld be replaced by

the Sico Company.. The Sico Company would continue to operate its tank farm and

Energy Transporters, Incorporated would operate the new tank farm adjacent

to it on the leased twenty-six acres of Sicols property.

The State Planner's status decision of February 14, 1973, was that no

coastal zone permit was required because petroleum tank farms ar6 not manufac-

turing and that the project was not prohibited as a heavy industry use because

It was in effect an extension of the Port of Wilmington docking facilities

which are.exempt from prohibition in the coastal zone. That is, the Improved

and the new tank farms, being dependent on use of the Port of Wilmington

(Marine.Terminal) petroleum pier, could logically be considered an essential

extension of that facility because petroleum unloaded would have to be stored

someplace and the tanks provided.that necessary storage. The-fact that these

tanks would be in close geographic prox [mity to the Marine Terminal pier and

were within the riverfront area of Wilmington, was an additional consideration

in the status decision.

An appeal of this status decision was filed on'March 2, 1973, by Mr. Albert
W. Adams, Jr., of near Milford, representing a private conservation organization
called Save Our Shores. Mr. Adams' appeal claimed that the-State Planner's
status decision was incorrect. He asked the State Coastal Zone Industrial
Control Board to reverse the decision for several reasons:
(1) The State Planner erroneously concluded that the Sico, project
was outside of the authority of the Coastal Zone Act.
(2) Storage tanks on the'Sico Foundation property cannot be considered
an extension of the Port of Wilmington docking facility-
(3) It was unnecessary and mistaken for the State Planner to refer to

- the Port docking facility once he had decided that the Sico and
Energy Transporter's tank farms were 'not manufacturing or heavy

I ndustry uses.

(4) The Board should examine the question of whether or not petroleum
tank farms are a heavy industry use because.they have tanks - a

physical feature used to define heavy industry uses in the Coastal

Zone Act.

On March 20, 1973, the State Goastal Zone Industrial Control Board held

a public hearing on the appeal at Scott Plaza, a State office buildl.ng, in

Wilmington. Testimony was heard from the attorney representing the appellant,

Mr. Adams, and an attorney for Energy Transporters, Incorporated representing the

status decision applicant. 'Members of the Board raised some questions and

elicited new information on the Sico project.

After the'appeal hearing but prior to the Board's decision, an agreement

was'reached by the State, Planner and the two parties concerned in the case to

modify the status decision in a way that would satisfy Mr. Adams of Save Our

Shores without changing the substance of the decision. The wording of the

State Planner's decision was changed so that it was made clear that the

geographic extent of the Port of Wilmington exemption of docking facilities

and functionally relate d bulk product storage tanks applied only within the

City of Wilmington. On April 18, 1973, the attorney for Save Our Shores notified

the Chairman of the State Coastal Zone Industrial Control Board that the

appeal was being withdrawn.on the basis 'of this mutually agreed-upon change

in the status decision.

The effect of the revised status decision on the Sico Foundation case is

to place a clear geographic limit on.the exemption under Section 7002(f)-of the

Coastal Zone Act of docki-ng facilities of the Port of Wilmington and functionally

related, nearby bulk product storage tanks. Storage tanks widely separated

from the Port and outside of the City of Wilmington would not come under the

exemption provided by Section 7002(f).

Project Number 2.4 - Townsend Incorporated

Townsend's Incorporated of Millsboro, Delaware applied on February 6,

1973, for a coastal zone status decision on two projects at its soybean

plant on Route 24 east of Millsboro. At this plant, soybeans are processed

for soybean oil and for chicken feed. The plant has been in operation since

the early 19501s.
Townsend's planned to enlarge its soybean extraction plant to double

capacity to extract soybean oil. Most of the increased capacity would not

be used in the near future, but would provide excess capacity to draw upon

at a future time. The second improvement would be to the soybean drying,

.cleaning and.storage facilities to provide increased capacity to handle wet

field soybeans and dry and store them.

The State Plannerfs status decitilon of February 12, 19.73, was that the

Townsend's plant was a non-conforming manufacturing use in the coastal zone

and that these Improvement projects were expansions or extensions not requiring

apermit by reason of not having "significant" effects on production capacity,

land use area, or the environme nt. There would be considerable emission of

soybean dust from the drying and cleaning process, but Townsend's would install

fine.mesh screens to control this exceeding State air quality requirements.
This ,was confirmed by the Department of Natural Resources and Environmental

Control.

On April 12, 1973, Townsend's Incorporated notified the State Planner

that their plans for the extraction plant had been revised to meet requirements

of the federal Occupational Safety and Health Act, of which Townsend's had

previously been unaware. The.plan changes,involved putting an industrial type

fence around the extraction plant a minimum distance from it, and placing a

.vapor barrier between the extraction process and a possible source of vapor

ignition,

After conferring with his legal advisor, the State Planner notified

Townsend's Incorporated on May 7., 1973, that a second status decision

application was not necessary and that the original decision remained in
effect because the'change of plant di d not involve changes in plant production

or environmental impact and had been made to satisfy federal occupational

health and safety requirements.

The status decisions for Townsend's Incorporated were not appealed.

Project Number.25 Container Corporation of America

Application for a coastal zone status decision was made on February 26,

1973, by the attorney for Container Corporation of America to construct and

operate a new plant in the City of New Castle for manufacturing paperboard.

industrial drum containers. The paperboard and metal ends would be manufac-

tured elsewhere and brought to this plant. Here the paperboard would be
shaped into containers and the metal lids crimped over the paperboard tubes.

The applicant described this as a fabrication process.

Container Corporation of America would purchase a site of approximately

eIght acres off New Castle Avenue provided the site received City rezoning

approval and the project received approval under the Coastal Zone Act.

The State Pl,anner gave his status decision on March 1, 1973, stating

that the plant would be a new manufacturing us Ie in the coastal zone requiring

application for a coastal zone permit following zoning approval by the Town

of New Castle.

There was no appeal of this status decision.

No permit application has been submittedand nothing further has been

heard of this project up to June 30, 1973, the end of the period covered by

this Annual Report.

Project Number 26 - Blue.Hen Finishing Company

On March 2, 1973, a status decision application was filed with the State

Planner for operation of a leather and artificial leather spray finishing

plant in the former Gioia Spe@cialty Foods plant in Odessa. Real and artificial
leather hides would'be sprayed with a polyurethane lacquer finish in a spray

booth and dried prior to shipment to customers who would use the lacquered

leather to make shoes.. handbags, belts, and other leather goods.

The applicant claimed that his operation was not manufacturing, but rather

it was similar to a paint shop. No leather would be tanned or made into finished

leather products here, the only thing done would be the spraying of the

chemical lacquer finish and color pigments onto pieces of tanned leather.

The State Planner in-his status decis ion of April 26, 1973, determined

that this was manufacturing because there was a chemical transformation of an
organic or Inorganic substanceinto a new product, meeting the definition of

manufacturing in the Coastal Zone Act.

No appeal of this status decision was made.

On June 26, 1973, the Blue Hen Finishing Company, Incorporated filed its

coastal zone permit application, one day following rezoning approval of the

plant site by the Mayor and Council of Odessa. The State Planner began his

review of the permit application and scheduled a pub lic hearing on it at the

end of July 1973, in Odessa; he had ninety days from the date of receipt of

this application to make his permit decision.

Project Number 27 - Stauffer Chemical Company
Application for a coastal zone status decision was made on March'7,

1973, by the Stauffer Chemical Company, Incorporated near Delaware City on a

project to modify its carbon disulfide plant by installing pollution control

equipment for further treatment of tail gases from an existing sulfur recovery

unit in order to reduce sulfur dioxide emissions to conform to State air

quality standards by January 1, 19.74. The Department of Natural Resources

and Environmental Control had issued a permit foe- construction of this

equipment.

On March 16, 1973, the State Planner made his status decision. No permit

was required and the project was not prohibited for this expansion or extension

of a non-conforming use. There were no s,ignificant effects on area aesthetic

qualities or plant land use area. There was no effect on plant production

capacity. There was a positive environmental effect by considerably reducing

emissions of sulfur dioxide from the carbon disulfide plant of the Stauffer

Chemical Company.

No appeal of this status decision was made.

Project Number 28 - Sun Oil Company

The Sun Oil Company.of Pennsylvania on March 26, 1973, applied for a

status decision on a revised proposal to extend its Pier #3 at the Marcus

Hook, Pennsylvania refinery. This project had previously been given a status,

decision upheld by the State Coastal Zone Industrial Control Board that the pier

extension into Delaware waters was prohibited (see Project Number 1.1).

In this status decision application, Sun Oil agreed in writing to use

that part of extended Pier #3 within Delaware exclusively for off-loading of

material for the Sun Marcus Hook refinery operations and not to use it for

trans-shipment in connection.with non-refinery operations. Sun Oil explicitly

stated that none ofits expanded-trans-sh ipment operations to serve.outside

customers would be located in Delaware. On this basis, Sun,Oil requested

exemption of extended Pier #3 as a docking facility or pier for a single

non-conforming industrial facility as allowed in Section 7002(f) of the

Coastal Zone Act.

On April 19, 1973, the State Planner made,his status decision granting

this exemption of extended Pier #3 from prohibition as an offshore bulk

product transfer facility under Section 7002(f) on the basis of the promise by

Sun Oil to use it exclusively for its own refinery purposes.

The status decision was not appealed.

Project Number 29 - Getty Oil Company

Application for a coastal zone status decision was filed on March 22,

1973, by the Getty Oil Company for modification of its sulfuric acid alkylation

plant to enable Getty to produce low lead and no lead gasoline at its Delaware

City refinery. There would be no net refinery production increase, and no

emissions to-the atmosphere or increase in liquid wastes from this plant

modification.

The State Planner's status decision of April 6, 1973,'declared that no

coastal zone permit was required and the project was not prohibited by reason

..of the project being expansion or extension of a non-conforming use that had no

"significant" impact on refinery production capacity or land use area, or

negative environmental effect.

There was no status decision appeal.

Project Number 30 - ICI America IncorVorated

ICI America Incorporated of Wilmington on April 10, 1973, applied for

a'status decision on a project to improve its Atlas Point organic chemicals

plant waste water treatment system.

ICI America Is required by the Delaware River Basin Commission and

federal and State agencies to improve the quality of its waste water discharges

to the Delaware River.

Additional improved plant waste water treatment facilities would be

constructed at the ICI America Atlas Point plant so that effluents to the

Delaware River would meet State, interstate, and federal water quality

standards. Within approximately two years, the plant waste water would go

into the extended New Castle County sewer system and then to the Wilmington

sewage treatment,planf - improved pre-treatment at the Atlas Point Plant would

-make its waste waters suitable for discharge to this public sewerage system.

Plant production capacity was not a factor in this status decision.

On May 14, 1973, the State Planner made his coastal zone status decision

that this was expansion or extension of a non-confo'rming usethat was not

prohlbited.and required no coasta.l'zone permit because it had no significant

affect on plant production, land use area, aesthetic qualities, or the environ-

ment.

No one appealed this status decision.

.Project Number 31 - Del Val Asphalt Corporation and

Project Number 32 - Artic Roofings, Incorporated

On April 9, 1973, status decision applications were filed by Del Val

Asphalt Corporation and Artic Roofings, Incorporated for air pollution

control equipment at their adjoining manufacturing plants at Edgemoor.

Duct work, fans, and dampers were to be installed for incineration of fumes

from two felt saturators at Artic Roofings and from asphalt oxidizers at Del

Val Asphalt in existing Incinerators at Del Val Asphalt. A new knock out

tank would also replace an existing tank at Del Val.

Both Del Val and Artic Roofings were.under order of the Chancery Court

to eliminate tar and asphalt odors beyond their property boundaries. The

joint project had received construction permits from the Air Resources Section

of the Department of Natural Resources and Environmental Control.

The State Plannerl.s status decisions of May 3, 1973, for this joint

project were that it was not prohibited and could proceed without a coastal

zone permit because the effects of this expansion or extension of non-conforming

uses were not significant, infact, the environmental effect would be a positive

one of eliminating disturbing off-site tar and asphalt odors.

No appeals of these status'decislons were filed.

Project Number 33 - General Electric Service Shop,

A status decision application was filed on April 30, 1973, by the General

Electric Service Shop of Philadelphia to construct.and operate a small plant

for the overhaul and repair of A. C. electric motors on two acres of [eased

land at the New Castle Industrial Park, Lambsons Lane near Pigeon Point,

Wilmington. No new electric motors would be manufactured; operations would be

-entirely the repair of used electric motors.

The,State Planner on May 9, 1973, decided that this project of the General

Electric Service Shop was outside of the, authority of the Coastal Zone Act.

There was no appeal from this status decision.

Project Number 34 - Forbes Steel and Wire Corporation

On June 20, .1973, application for a status decision was filed by the

Forbes Steel and,Wire Corporation at New Castle and New York Avenues, Wilmington,

to construct an addition to its existing plant to enlarge its batch steel

cleaning operations.

-The State Planner on June 293, 1973,-notified the Forbes Steel and Wire

Corporation that it was not regulated by the Coastal Zone Act because its

plant is located outside of the legal coastal zone, that is, it is located

a short distance to the west of the right-of-way of Interstate 495, the coastal

zone landward.boundary in Wilmington.,

There was no legal notice advertised for this decision since there seemed

to be no real'basis for any appeal and the status decision procedure was

unnecessary an'd could have been avoided If the company representative had

first informally checked with the State Planning Office as to the boundaries

of the coastal zone. The legal advisor tothe State Planner on coastal zone

matters concurred with this decision not to require published legal,notice.

Project Number'35 Getty Oil Company

The Getty Oil Company on June 251, 1973, applied for a status decision to

modify a catalytic cracker reactor at its Delaware City refinery to improve

efficiency of producing gasoline an.d furnace oil from gas oil. There will be

an Increased production of gasoline due to the more efficient technology, but

the refinery crude oil processing capacity will not increase.

This application was being reviewed by the State Planning Office at the

end of the period covered in this An nual Report.

Project Number 36 Stauffer Chemical Company

On June 29,-1973, the Stauffer Chemical Company applied for a coastal

zone status decision on a project to replace two steam boilers with two new

much larger boilers at its PVC Chemical Plant near Delaware City. A steam
boiler capacity increase of more than 3x will result from installation of +he

new boilers. The Company has applied to the Department of Natural Resources

and Environmental Control for a permit from the Air Resources Section.

This application was under review by the State Planning Office at the end

of the period covered in this Annual Report.

APPENDIX I

Coastal Zone Act and Map

This bill appears as Chapter 175
volume 58 Laws of-Delaware
Approved by the Governor

HOUSE OF REPRESENTATIVES

126TH GENERAL ASSEMBLY

FIRST SESSION - 1971

HOUSE SUBSTITUTE NO. 2

FOR

HOUSE BILL NO. 300

AS AMEMDED BY

HOUSE AMENDMENTS NO. 1. 2, 8, 11, 12, 13, 14,

15, 18, 19, 22, 23 'AND 24

AN ACT CREATING A NEW CHAPTER 70, TITLE 7, DELAWARE CODE TO ESTABLISH A
COASTAL ZONE IN DELAWARE; TO PROHIBIT OR LIMIT CERTAIN USES THEREIN;
TO CREATE A STATE COASTAL,ZONE INDUSTRIAL CONTROL BOARD

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE

Section 1. Title 7, Delaware Code, to amendcd by creating a I

new Chapter 70 to read as follows: 2

"CHAPTER 70. COASTAL ZONE ACT 3

7001. Purpose 4

it is hereby determined that the coastal areas of Delaware 5

are the most critical areas for the future'of the State in
6

terms of the quality of life in the State. It is, therefore, 7

the declared public policy of the State of Delaware to control

the location, extent and type of industrial dvelopment in 9

Delaware's coastal areas.In so doing, the State can better 10

protect the natural environment of its bay and coastal areas 11

and safeguard their eve primarily for recreation and tourism. 12

Specifically, this chapter seeks to prohibit entirely the con- I
struction of new heavy industry in its coastal areas, which 2

industry is determined to be incompatible with the protection 3

of that natural environment in those areas. While it is the 4

declare public policy of the State to encourage the intro- 5

of new industry into Delaware, the protection of the 6

environment, natural beauty and recreation potential of the 7

State is also of great concern. In order to strike the correct 8
balance between these two policies careful planning based on 9
a through understanding of Delaware's potential and her needs
10

is required Therefore, control of industrial development 11

other than that of heavy industry in the.Coastal Zone of Del&- 12
ware through a permit system at the State level is called for. 13

'it is further determtned that off-shore bulk product transfer 14

facilities represent a significant danger of pollution to the 15

Coastal Zone and generate pressure for the construction of 16

industrial plants in the Coastal Zone, which construction is 17

declared to be against public policy For these reasons, 18

prohibition against bulk product transfer facilities in the 19
Coastal Zone is deemed imperative. 20

7002. Definitions 21

(a) The Coastal Zone' to defined as all that area of 22
the state of Delaware, whether Innd, water or subaqueous land 23

between the territorial limits of Delaware In the Delaware 24

river. Delaware Bay and Atlantic Ocean, and a line formed by 25

certain Delaware highways and roads as follows: 26

Beginning at the Delaware - Pennsylvania line at a 27
place where cold line intersects U.S. Route13; thence 28

southward along the said U. S. Route 13 until it inter-
29

sects the right -of way of U. S. Route 1 - 495 ; thence along
30

said 1-495 right-of-way until the said 1-495 right-Ofway I

intersects:Delaware Route 9 south of Wilmington; thence 2

along said Delaware Route 9 to the point of its intersection 3
with Delaware Route 273; thence along said'Delaware Route 4

23 to U.S. 13; thence along U. S. 13 to Maintenance Road 5
thence along Maintenance Road 409 to Delaware Road 71; 6

thence along Delaware Road 71 to its intersection with 7
Delaware Road 4 , thence along Delaware Road 54 to Delaware 8

Road 896, thence along Delaware Road 896 to Maintenance 9

Road 346 thence along Maintenance Road 396 to Maintenance 10

Road 98, thence along Maintenance Road 398 to the Maryland 11

State Line; thence southward along the Maryland State Line 12

to Maintenance Road 433; thence along Maintenance Road 433 13

Co Maintenance Road 63, thence along Maintenance Road 63 14

to Maintenance Road 412,thence along maintenance Road 15

412 to U. S. 13. thence along U. S. 113 to Delaware 299 at 16

Odessa; thence along Delaware Route 299 to its intersection 17

with Delaware Route 9; thence along Delaware Route 9 to 18

U. S. 113; thence along U. S Route 113 to Maintenance 19

Road 8A, thence along Maintenance Road 8A to Maintenance 20

Road 7 to the point of its intersection with Delaware Route 21

14; thence along Delaware Route 14 to Delaware Route 24; 22
thence along Delaware Route 24 to Maintenance Road 331; 23
thence along Maintenance Road 331 to Maintenance Road 334; 24

thence along Maintenance Road 334 to Delaware Route 26; thence 25
along Delaware Route 26 to Maintenance Road 365; thence along 26
Maintenance Road 365 to maintentance Road 84; thence Along 27

Maintenance Road 84 to Maintenance Road 84: thence along 28
Maintenance Road 384 to Maintenance Road 382A: thence along 29

Maintenance Road 382A to' Maintenance Road 389 thence along 30

Maintenance Road 389 to Maintenance Road 58; thence alon I

Maintenance Road 58 to Maintenance Road 395; thence along 2

Maintenance Road 395 to the Maryland State Line. 3

(b) 'Non-conforming use' means a use., whether of land or 4

of a structure, which does not comply with the applicable use 5
In this chapter where such use was lawfully in
6

existence and in active use prior to the enactment of this 7

chapter. 8
(c) 'Environmental impact Statement' means a detailed 9

description as prescribed by the State Planning Office of the
10

effect the proposed use on the immediate and surrounding 11

environment and natural resources such as water quality, 12

fisheries, wildlife and the aesthetics of the region. 13

(1) manufacturing' means the mechanical or chemical 14.

transformation of organic or inorganic substances Into new 15

products, characteristically using power driven machines and 16

materials handling equipment, and including establishments 17

engaged in assembling component parts of manufactured products, 18
provided the new product is not a structure or other fixed 19

improvement. 20
(e) 'Heavy industry use' means a use characteristically 21

involving more than -twenty acres, and characteristically 22
employing some but not necessarily all-of such equipment. such 23
as, but not limited to, smoke stacks, tanks, distillation or 24
reaction columns. chemical processing equipment scrubbing 25

towers , pickling equipment, and waste treatment lagoons; which 26
industry, although conceivably operable without polluting the 27
environment, has the potential to pollute when equipment 28
malfunctions or human error occurs. Examples of heavy industry 29
are 'oil refineries.basic steel manufacturing plants, basic 30

cellulosic pulp paper mills, and chemical plants such as petro-
chemical complexes. Generic examples of uses not included in 2
the definition of 'heavy industry' are such uses as garment 3
factories, automobile assembly plants and. jewelry and leather 4
goods manufacturIng establlshments. 5
(f) 'Bulk product transfer facility' means any port or 6
dock facility , whether an artificial island or attached to 7
shore by any means, for the transfer of bulk quantities of any 8
substance from vessel to on-shore facility or vice versa., Not 9

included in, this definition is a docking facility or pier for 10

inIdustrial or manufacturing facility for which a 11
permit is granted or which is a non-conforming use. Likewise. 12
docking facilities for the Port of Wilmington are not included 13
in this definition. 14

(g) person' shall include. but not be limited to, any 15
individual, group of individuals, contract or, supplier, in- 16
staller, user, owner, partnership, firm, company, corporation, 17
association, Joint stock company. trust, estate, political 18
subdivision, administrative agency, public or quasi-public 19
corporation or body, or any other legal entity, or its legal 20
representative, agent, or assignee. 21
(h) 'Board' shall mean the Coastal Zone Industrial 22

control Board. 23
$ 7003. Uses absolutely-prohibited in the 24
Coastal Zone 25

Heavy industry uses of any kind not-in operation on the 26
date of enactment of this chapter are prohibited in the Coastal 27
Zone and no permits may be issued therefor. In addition, off- 28
shore gas, liquid, or solid bulk product: transfer facilities 29
which are not in operation on the date of enactment of this 300

chapter are prohibited in the Coastal Zone, and no permit may
be Issued therefor.. Provided, that this section shall not 2

apply to public sewage treatment or recycling plants. 3
7004. Uses allowed by permit only. 4
Non-conforming uses 5

(a) Except for heavy Industry uses, as defined in section 6

7002 of this chapter manufacturing uses not in. existence and 7

an active use of the date of enactment of this chapter are 8

"one by permit only, as provided for 9
Allowed in the coastal

under this section. Any non-conforming use in existence and 10

in active use on the effective date of this chapter shall not 11

be prohibited by this chapter. All expansion or extension of 12

non conforming manufarturing uses, as defined herein,and all 13

expansion or extension of uses for which a permit is issued 14

pursuant to this chapter, are likewise allowed only by permit. 15

Provided, that no permit may be granted tinder this chapter 16

unless the county or municipality having jurisdiction has first 17
approved the use in question by zoning procedures provided by 18

law.

(b) In passing on permit, the State Planner and
the State casual zone industrial Control Boar shall consider 24
the following factors 22
(1) Enviornmental Impact, including but not limited 23

to, probable air and water pollution likely to be gener- 24

ated by the proposed use under normal operating conditions 25

as well as during mechanical malfunction and human error; 26
likely destruction of wetlands and flota and fauna; impact 27
of site preparation on drainage of the area in question, 28
especially as it relates to flood control impact of site 29
preparation and facility operations on land erosion,. 30

effect of site preparation and facility operations on the 1
quality and quantity of surface ground and sub-surface 2
water resources, such as the use of water for processing, 3
cooling, effluent removal, and other purposes; in addition 4
but not limited to, likelihood of generation of glare, heat, 5
noise, vibration, radiation, electromagnetic interference 6
and obnoxious odors. 7

(2) economic effect, including the number of jobs 8
created and the income which will be generated by the 9
wages and salaries of these jobs in relation to the amount 10
of land required, and the amount of tax revenues potentially 11
accruing to state and local government 12
(3) aesthetic effect, such as impact on scenic 13
beauty of the surrounding area 14
(4) number and type of supporting facilities required 15
and the impact of such facilities on all factors listed in 16
this subsection 17
(5) effect on neighboring land uses including, but 18
not limited to, effect on public acess to tidal waters, 19
effect on recreational areas, and effect on adjacent 20
residential and agricultural areas. 21
(6) county and municipal comprehensive plans for 22
the development and/or conservatin of their areas of 23
jurisdiction. 24
$7003. administration of this chapter 25
(a) the state planning office shall administer this 26
chapter. all requests for permits for manufacturing land 27
uses and for the expansion or extension of non-conforming 28
uses as herein defined in the coastal zone shall be directed 29.
to the state planner. such requests must be in writing and 30

must include (1) evidence of approval by the appropriate county I
or municipal zoning authorities, (2) a detailed description of 2
the proposed construction and'operation of the use, and (3) an 3
Envirointiental impact Statement. The State Planner shall hold a 4
public hearing and may request further informatfon of the 5
appican@ . The State Planner shall first determine whether the 6

joropoi-cd use is, according to thin chapter and regulations 7

issued pursuant thereto, (1) a heavy industry use under section 8

7063, k@.)) a use allowable only by permit under section 7004; or 9
(It a use requiring no action under this chapter. The State 10

'I"I.,ni-er shall then, if he determines that section 7004 applies,
reply tothe request for a permit within ninety (90) days of 12

receipt of the said request for permit, either granting the 13

14
request, denying same, or granting the requeat but requiriAg

modifications; he shall state the reasons for his decision.- 15
(h) ne State Planner may issue regulations'including. 16

but not limited to, regulations governing dinposition of 17

permit requests, and setting forth proceduren for hearings

before himself and the Board. Provided, that all such regula- 19

tions shall be subject to approval by the Poard. 20

hensive plan and guidelines for the State Coastal Zone Industrial 22

Control Board concerning types of manufacturing uses deemed 23

acceptable in the Coastal Zone and regulations for the further 24
elaboration of the definition of $heavy @ndkistry' in a manner 25

consistent with the purposes and provisions of this chapter. 26

Stich plan and guidelines shall become binding regulations upon 27
adoption by the Board after public hearing. The Board may alter 28
said regulationa at any time after a public hearing. provided, 290
that any such re.gulationa shall be consistent with sections 30

7003 and 7004 of th is chapter. 31

-58

(d) the state planning office and all agencies of state 1
government shall assist the state coastal zone industrial control 2
board in developing policies and procedures, and shall provide 3
the board with such information as it shall require 4
$700l. state coastal zone industrial control 5
board created. composition. conflict 6
of interest. quorum. 7
there is hereby created a state coastal zone industrial 8
control board, which shall have ten (10) voting members, five 9
(5) of these shall be regular members appointed by the governor 10
and confirmed by the senate. no more than two (2) of the regular 11
shall be affiliated with the same political party. at 12
least one regular member shall be a resident of new castle 13
county, one a resident of kent county and one a resident of 14
sussex county, provided that no more than two residents of any 15
county shall serve on the board at the same time. the additional 16
five (5) members shall be the secretary of natural resources and 17
environmental control, the secretary of community affairs and 18
economic development, and the chairmen of the planning commis- 19
sions of each county, who shall be ex-officio voting members. 20
the term of one appointed regular member shall be for one (1) 21
year; one for two (2) years; one for three (3) years; one for 22
four (4) years; and the chairman, to be designated as such by 23
the governor, and serve at his pleasure. therafter, all 24
regular members shall be appointed for five year terms. the 25
members shall receive no compensation except for expenses. any 26
member of the board with a conflict of interest in a matter in 27
question shall disqualify himself from consideration of that 28
matter. a majority of the total membership of the board less 29
those disqualifying themselves shall constitute a quorum. a 30.
majority of the total membership of the board shall be necessary 31
to make a final decision on a permit request. 32

$7007. appeals to state coastal zone 1
industrial control board 2
(a) the state coastal zone industrial control board shall 3
have the power to hear appeals from decisions of the state 4
planner made under section 7005. the board may affirm or re- 5
verse the decision of the state planner with respect to 6
applicability of any provision of this chapter to a proposed 7
use; it may modify any permit granted by the state planner, 8
grant a permit denied by him, deny a permit, or confirm his 9
grant of a permit. provided, however, that the board may grant 10
so permit for uses prohibited in section 7003 herein 11
(b) any person aggrieved by a final decision of the state 12
planner under section 7005 (a) may appeal same under this 13
section. appellants must file notice of appeal with the state 14
coastal zone industrial control board within fourteen (14) days 15
following announcement by the state planner of his decision. 16
state coastal zone industrial control board must hold a 17
hearing and render its decision in the form of a final order 18
within sixty (60) days following receipt of the appeal notifi- 19
cation. 20
(c) whenever a decision of the state planner concerning 21
a permit request is appealed, the board shall hold a public 22
hearing at which the appellant may be represented by counsel. 23
all proceedings in such a hearing shall be made a matter of 24
record and a transcript or recording of all proceedings kept, 25
and the public may attend and be heard. 26
(d) the board shall publicly announce by publication in 27
at least one newspaper of daily publication in the county in 28
which the site designated in the request is wholly or princi- 29
pally located and in at least one newspapter of daily publication 30

and general circulation throughout the State the time, location 1
and subject of all-hearings under this se ction at least ten (10) 2
days prior thereto. 3
7008. Appeals to Superior Cour t 4
Any person aggrieved by a final order of the State Coastal 5
Zone Industrial Control Board under section 7007 May appeal the 6
Board's decis ion to Superior Court in and for the county of the 7
location of the land in question. Likewise, the State Planner 8
may appeal from any modification by the Board of his ruling. 9
The appeal shall be commenced by filing notice thereof with 10

Superior Court not more than twenty (20) days following announce- 11
ment of the Board's decision. The Court may affirm the Board's 12

order in its entirety, modify same, or reverse said order. In 13

either case, the appeal shall be based on the record of pro- 14

ceedlngs before the board, the only issue being whether the 15

Board abused its' discretion in applying standards set forth by 16

this chapter and regulations issued pursuant thereto to the 17
facts of the particular case. The Superior Court may by rule 18
prescribe procedure by which it will receive, hear, and make 19
disposition of appeals under this chapter. 20
Provided, that no appeal under this chapter shall stay any, 21
cease and desist order or injunction issued pursuent to this 22

chapter. 23

7009. Condemnation 24
If Superior Court rules that a permit's denial, or re- 25

strictions imposed by a granted permit. or the operation of 26

section 7003 or section 7004 of this chapter, is an unconsti- 27

tutional taking without Just compensation, the Sectary of, 28

the State Department of Natural Resources and Envirornmental 29
Control may, through negotiation or condemnation proceedings 30

under Chapter 61 of Title 10, acquire the fee simple or any 1
lesser interests in the land. The Secretary must use this 2
authority within five years from the date of the Court's ruling, 3
for after said five years have elapsed the permit must be granted 4
as applied for if the land has not been acquired under this 5

authority. 6

7010. Cease and Desist Orders 7

The Attorney General shall have the power to issue a 8

cease and desist order to any person violating any provision 9
of this chapter ordering such person to cease and desist from 10
such violation. Provided, that any cease and desist order 11

issued pursuant to this section shall expire (1) after thirty 12
(30) days of its issuance, or (2) upon withdrawal of said order 13

by the Attorney General, or (3) when the order in superseded 14
by an injunction, whichever occurs first. 15

7011. Penalties 16
Any person who vlolates any provision of this chapter shall 17
be fined not more than $50,000 for each offense. The continu- 18
ance of an activity prohibited by this chapter during any part 19
of a day shall constitute a separate offense. Superior Court 20

shall have exclusive original Jurisdiction over offenses under 21

this chapter. 22

7012. injunctions 23

The Court of Chancery shall have jurisdiction to enjoin 24
violations of this chapter. 25

7013. Inconsistent laws superseded All other 26
laws unimpaired. Certain uses not 27
authorized. 28

All laws or ordinances inconsistent with any provision 29

of this chapter are hereby superceeded to the extent of the 30
inconsistency. Provided, that present and future zoning powers 31

of all counties and municipalities, to the extent that said. 1
powers are not inconsistent with this chapter, shall not hereby 2
be impatred; and provided that a permit granted under this chapter 3
shall not authorize a use in contravention of county or mmicipal 4
zoning regulations. 5
7014. Severability and Savings Clause 6

if any provision of this chapter', or of any rul e, regulation, 7
or order promulgated thereunder, or the application of any such 8
provision, regulation, or order to any person or circumstances 9
shall be held inv&lid, the remainder of this chapter or any 10
regulations or order promulgated pursuant thereto or the appxi- 11

cation of such provision, regulations, or order to persons or 12

circumstances other thdn those to which it in held invalid, 13

shall not be affected thereby." 14

NEW
CASTL

s I

096
0
DELAWARE COASTAL ZONE
Wki

ODESSA ROAD NUMBERS

U., 2,
fA wGiz . . . . . .

tREE
OOVER

tv,

-4*kx
1131 smilkrai,
Mal

@VT

SCALE IN MILES

MILL-GRO

DAG OR

'HE ATLAHTIt OtEAR LIMIT OF THE COASTAL ZONE
B4 ExTElms AT LEAST TO THE HISTORIC THRIE.E OLE LIMIT.
DELAW&RE'S SEAWARD B.IJN]DARI 1. CQRP9.TLl SE-a
CONTEMD IN FEDERAL COURT.
L ___DELA.AR,

APPENDIX 2

Administrative Forms and Procedures

COASTAL ZONE ACT

STATE OF DELAWARE

Application For A Project Status Decision
Under Terms of Section 7005 (a) and
Reg'ulations Adopted Pursuant to
Section 7005 (b) of the Coastal Zone Act

Delaware State Planning Office
530 S. DuPont Highway
Dover, Delaware

(Checklist for State Planner)

Status Application Number

Application Sent to Applicant (date)
Application 'Received (date)

Nature of Application Decision

Decision Notification (date)

Appeal Filed (date)

Date Received Application Number
(to be filled in by State Planner) (.to be filled in by State Planner)

APPLICATION FOR A COASTAL ZONE
STATUS DECISION

A. Identification of the Applicant

Name

Address

Telephone

Signature

If the Applicant is not the Project Owner but is an Authorized Agent of the
Owner please so state below, and state the Owner's name and address

B. Identification of the Project

Briefly describe,the project as follows:
1. Location of project site

2. Is the project entirely new construction

reconstruction an d improvement

expansion and extension of an
existing facility
(check where appropriate)

3. Nature and Scale of the project including a brief description of
manufacturing processes and,products, or types of products to be
transferred (if the project is a bulk product transfer facility)

(attach descriptive material to this Application)

Advice To The Applicant

(this advisory material may be retained by the Applicant)

1. Descriptive material may include sketch maps and plans--detailed en-
gineering or architectural plans are not necessary.

2. The information provided with this Application need be sufficient in
detail only to the extent that it enables the State Planner to clearly
understand the nature of the project so that he may determine its status
under the Coastal Zone Act.

3. The purpose of the Status Decision is to determine:

a. if a proposed project is a prohibited heavy industry or offshore
bulk product transfer facility, as defined by the Coastal Zone Act, or

b. if a project is outside the scope of the Coastal Zone Act, or

C. if the project is manufacturing which may be allowed by permit

4. There is no time limit for the State Planner's status decision. How-
ever, applications will be reviewed as expeditiously as possible.

5. The Applicant will be notified by mail of the Status Decision. If the
Applicant's project is a prohibited use in the Coastal Zone, the Ap-
plicant may appeal that decision to the State Coastal zone Industrial
Control Board within fourteen (14) (lays of receiving formal notice of
the decision. In such a case, the Applicant will be provided with an
appeals form, at the time he is notified of the Status Decision.

If the Applicant's project is a permitted manuanufacturing use he will be
provided with Application forms necessary to apply for a coastal zone
permit at the time of Status Decision notification.

COASTAL ZONE ACT

STATE OF DELAWARE

Permit Application Instructions and Forms
and
Information Material On
Requi red Procedures-

Delaware State' Planning Office
Dover, Delaware

406

APPLICATION FOR A COASTAL ZONE PERMIT

RECORD OF APPLICATION

Aim

State of Delaware

Delaware State Planning Office
Thomas Collins Building
530 South DuPont Highway
Dover, Delaware 19.901.

(Checklist For State Planner)

Application Project Number
Application Sent to Applicant
Application Received
Application Hearing Advertisement
Application Hearing Held
Permit Decision (Nature Of)
Decision Public Notice
Decision Notice to Applicant
Appeal Application Received
Permit Mailed to Applicant

.70

INSTRUCTIONS FOR COMPLETION OF THE RECORD OF APPLICATION
FOR A COASTAL ZONE PERMIT

1. Complete the application form (Part,l).

2. Complete mandatory Application Supporting Documents Parts 1.1,
1.2 and 1.3. If additional space is needed for any Information
requested, use separate sheets, attach to the appropriate document
and clearly Identify each part and question [email protected] and letter.

3. Complete and sign the Letter of Affirmation, Part 1.4.

4. Appropriate optional Application Supporting Documents should be
completed at the discretion of the permit applicant; in all.cases
they should be completed to the extent required by the State Planner.

Submit all completed permit application material to the:

Delaware State Planning Office
Tho'mas Collins Building
530 South duPont Highway
Dover, Delaware 19901

Date Received Application Number
(to be filled in by State Planner) (to be filled in by 3tate
Planner)

PART I

DELAWNRE STATE PLANNING OFFICE

APPLICATION FOR A COASTAL ZONE PERMIT

DATE 19

A. Name of Oroject Owner

Business Address and Telephone Number

B. Name of Project Developer (if not the owner)

Business Address and Telephone Number

C. Authorized Agent ('for this project apr)l.ication)'

Name

Business Address and Telephone Number

D. Application is hereby made for:

new construction
reconstruction or improvement
expansion or extension

E. Property Location (mailing address and identification of abutting
highways, roads, or streets)

F. Signature and Title of Authorized Agent

Application Number
(to be filled in by State
Planner)

PART 1.1

Application Supporting Document

EVIDENCE OF LOCAL ZONING JURISDICTION APPROVAL

I zoning
(Name)

administrator for do hereby
(Name of county, city or town)

affirm that the project proposed by
(Name of permit applicant)

located at
(Address)

in the zoning district is in full compliance with the

zoning code as it applies to this Project.

Signature of Zoning Officer

Official Title

County or Municipal Seal
(if applicable)

Application Number
n by State.Planner)
(to be filled I

PART 1.2

Application Supporting.Document

DESCRIPTION OF PROJECT CONSTRUCTION AND OPERATIONS

A. Describe the.project for which application is being made foe a
coastal zone permit. Sufficient information should be provided
in this description to enable a reader'to clearly and fu.lly
understand.the intent and scope of the project. Include a
general statement of the means to be taken to remove gas, liquid
and solid,wastes.

B. Project Location Map having the following characteristics:

1. Drawn to scale no smaller than one inch to 2,000 feet.

2. A nort.h.arrow showing true north.

3. A graphic scale.

4. Show the entire property boundaries and clearly indicate that,
part of the site for which this coastal zone permit application
is made and any part of the property previously developed.

5. Clearly show and identify-highways, roads, and local streets
abutting or-leading into the project site.

6. Indicate the County and Hundred within which the project site
is located.

Application Number
(to be filled in by State Planner)

PART 1.3

Application Supporting Document.

ENVIRONMENTAL IMPACT STATEMENT

A. Describe the probable Impact of the project on the environment
and on ecological' systems such as, wildlife, marine IIIfe and plant
communities. Secondary as well as primary significant consequences.
should be included. For example, perhaps the project will, have a
primary effect of eliminating or substantially reducing a link In*
the natural food chain of marine life, thereby having a secondary
effect on forms of marine life which prey on thellfe,form.el iminated
or severely reduced.

B. Describe the cumulative and long term effects of. the project on
the.environment and natural resource base, as well as the immediate
effects.

C. identify the 'extent to which the project curtails the range of
beneficial uses of the environment. For example,-a shoreline
dredged or filled for an industrial port facility will be entirely
or largely removed from any other potential use. Include descriptions
of any irreversible and irretrievable comm'itments of environmbntal
resources.

References to relevant studies and plans should be included to support
the statement descriptions, analyses and conclusions.

Ap'D I i cat i on No,.
(to be filled in by State
P I anner)

PART I . 4

APPLICATION LETTER OF AFFIRMATION

I hereby affirm on this day of 19

as follows:

1. That I am the owner, or the duty authorized agent of the

owner of the project, described in this application, known

as the

project located at

in County of Delaware.

2. That the statements made in this Application for a Coastal Zone

Permit together with Application Supporting Documents and attached

material, and the Environmental Impact Statement, are true, complete

and correct to the best of my knowledge and information.

Signature of )@P-P-Iicant or Agent

I le

Corporate Seal (if WDrTl=cable)

@NOTE: If the affirmation is made by an aqent of the project owner, submit
as Letter of Affirmation Supporting Document 1.41 written authori-
zation to act as agent..

This Document is Mandatory Only When Requested By The State Planner

Application Number
(to be filled in by State
Planner)

PART 2

ApDlication Supporting Document

PROJECT CO ST AND PROPERTY RECOR 0

A. Submit as Supporting Document 2 an estimate of the Project Cost
and information regarding,the project Property Reco@d i@-?`6-11ows:

1. State below the estimated total cost of imDrovements to land and
Cost of buildings:

2. State whether the Applicant owns the project site or leases the
site.or has it.under option or other similar arrangement.

3. State the number of acres: owned
leased
under option or similar arrangement

'4. State whether the project property deed Is recorded, and, if so, give
the date and place of recording, the deed book and page numbers, and
nam6(s) of the owner(s) of record.

These Documents are Mandatory Only When Requested By The State Planner

Application Number
(to be filled in by State

PART 3

Application SupDorting Document

PROJECT SITE PLAN

A. Submit as Supporting Document 3 a Preliminary Project Site Plan having
the following characteristics:

1. Drawn to scale no smaller than one inch to 200 feet.
2. A graphic scale.
3. A north arrow showing true north.
4. Name and license number of the Delaware licensed archi,tect and/or
landscape architect responsible for the. Plan.
5. Acreage of the total nroperty, and the project site (where the
project for which permit application is made includes only part
of a property).
6. Property lines of the entire property including dimensions and
deflection angles.
7. Estimated staqes of development (if the project is only one of a
series of'stages' of development).
8. Existing and proposed buildings and major accessory structures
indicating use.
9. Existing and proposed roads, and other transportation facilities,
including such as railroads, entranceways, parking and loading
areasand piers, wharves, boat landinqs, or other port facilities.
Parking and loading dimensions and capacities should be shown.
106 Existing and proposed gas and electric utility, drainaqe,.and
other rights-of-way (other than roads).
11. Proposed project landscapinq features.

B. -The Project Site Plan shall be a reproducible on polyester film a
''minimum of 3/1000" thickness.

C. Plan single sheet size shall not exceed 38" x 48". If more than one
sheet is necessary, each sheet should be identified by letter or number
and there should be a key sketch showing how the sheets fit together.

D. Documents to accompany the Project Site Plan:

1. Supporting Document 3.1 (attach) Schematic Elevations and Plans of
proposed buildings and major accessor structures showing exterior
features, and including the name and Delaware license of the architect.

The drawings should be at a scale no smaller than one inch to 50 feet.

16
78

These-Documents Are Mandatory On,ly When Requested By The State,Planner

Application Number
(to be fi,lled ih by State
Planner)

PART 4

Application Supporting Document

DESCRIPTIONS OF PROJECT WATER AND SANITARY SEWERAGE SYSTEMS

Submit as Supporting Document 4 Descriptions of Water and Sanitary Sewerage
Systems as follows:
Water System @on site for which permit application is made)

a. Name of off-site public or private water comnany sYstenito be
used (if applicable).

b. Will an on-site water system be Installed or enlarged?

c. For all uses of water other than for cooling purposes, estimate:

(1) Amount of-water to be used: indicate if replacement water
or totil

daily average - gallons per day (g.p.d.)'.
daily peak - g.p.d. (if water use will vary-on a seasonal
or periodic basis)

(2) Purposes of water use (list by function)

d. Uses of water for cooling purposes, estimate:
1) Amount of water to be used make-up,'and re-cycled:

daily average - g.p.d.
daily peak - g.p.d. (if water use will vary on a seasonal
or periodic basis)

(2), Briefly describe uses of water for cooling including:

identification of receiving surface waters;
natural temperatures of receiving waters;
effect of cooling water discharge on receiving waters
in terms of teriperature increase and area affected.

PART 4'(continued)

Sewerage System

a. Name of off-site public or private sewerage system to be used
(if applicable).

b. If an on-site sewerage system will be installed or enlarged,
generally describe as follows:

(1) Types of sewage (organic, chemical, mineral)
(2) Estimated average daily quantity of sewage, by type
(3) Estimated peak daily quantity of sewage, by type
.(If the quantity will vary on a seasonal or periodic basis)
(4) Estimated daily treatment capacity
(5) Type and level of sewage treatment
(6) Number of sewage outfalls by name of receiving water body
provide a sketch plan of this with a scale and north arrow
(7) If ground-water will be recharged, briefly describe the
process including the amount of water involved.

These Documents Are Mandatory Only When Requested By The State Planner

Application Number
(to be filled In by State
Planner)

PART 5

Application Supporting Document

PROJECT GRADING PLAN

A. Submit as Supporting Document 5 a Preliminary Project Gradin2 Plan
having the following characteristics:

1. Drawn to scale no smaller than one inch to 200 feet.
2. A graphic scale.
3. A north arrow *showing true north.
4. Name and license number of the Delaware licensed civil engineer
responsible for the Grading Plan.
5. Existing contours:
at 2 foot intervals on land With a five percent slope or less,
at 5 foot intervals on land exceeding a five percent slope.
6. Contours after grading:
at 2 foot intervals on land with.a five percent slope or less.,
at 5 foot intervals on land exceeding a five percent slope.'
7. Existing poorly drained areas, marshes, and tidal wetlands.
8. Existing and proposed water bodies including intermittent streams.
9. Location and extent of landfill a 'reas, existing and proposed.
10.., Location and extent of soil removal areas (including dredging);
existing and proposed.
11. Location and extent of bulkh6ading, existing and proposed.
12. Property lines and dimensions of the entire property.

B. The Project Grading Plan shall be a reproducible. on polyester flAm a
minimum of 3/1000" thickness-

C. Plan single sheet size should not exceed 38" x .48". If more than one
sheet Is necessary, each sheet should be Identified by letter or number
and there should be a key sketch showing how the sheets fit together.

D. Documents to accompany the Project Gradinq Plan:

1. Supporting Document 5.1 (attach).

Description of measures taken for planting, seeding, or otherwise
restoring vegetation cover on cleared, graded, or filled land in
order to prevent or@mlnimize soil erosion.

PAKr 5 (continued)
2. Supporting Document 5.2 (attach, If applica6le)

Description of the amount and type of landfill, distinguishing
clean fill from organic or solid waste used for fill.

Description of the amount of dredged material and the locations
of disposal areas for dredged material.

.This Document Is Mandatory Only When Requested By The State Planner

Application Number
(to be filled in by State
Planner)

PART 6

Application Supporting Document

PROJECT STORM DRAIriAnE PLAN

A. Submit as Supporting Document 6.a Preliminary ProJect Storm.Drainage
Plan having the fol.lowing characteristics:

1. Drawn to scale no smaller than one inch to 50 feet.

2. A graphic scale.

3. A north arrow showing true north.

4.,Approximate locations and estimated carrying capacities of storm
drainage culverts and pipelines.

5. Approximate locations,and estimated carrying capacities of storm
drainage b.asins.

6. Approximate locations of storm drainage outfall s to natural water
bodies.

7. Proposed amount of land to be paved-over or occupied by buildings
and estimated increase in'storm water run-off above natural run-off.

8. Property lines and dimensions of the entire property.

B. The Project Storm Drainage Plan shall be a reproducible on polyester
film a minimum of 3/1000" thickness.

C. Plan single sheet size shall not exceed 38" x 48". If more than one
sheet is necessary, each sheet should be identified by letter or number
and therd should be a key sketch showing how the sheets fit together.

This Document Is Mandatory Only When Requested By The State Planner

Application Number
(to'be filled In by Ma@e
Planner)

PART 7

Application Supporting Document

DETAILED DESCRIPTION OF PROJECT CONSTRUCTION AND OPERATIONS

Submit as Supporting Document 7 a Descr!2tion of Pro.lect Construction and
Operations Including the followlng-:

1. The type and characteristics of the manufactured or processed
product and of the process or assembly operation.

2. The nature of the raw materials or semi-finished materials
which are the basis for the manufacturing operation.

3. The means of transportation (rail, water, air. or highway) to
be utilized for moving materials to and products from the plant.
Expected size and weight of trucks (if any). Amount of daily
truck traffic expected,

4. The quantity, source, and use of water expected to be required
for plant operations.

5. The type of power and fuels to be used for plant operations.

6, The type and estimated amount of waste to be produced In the
course of plant operations.

7. A general statement of the means to be taken to remove waste
Including gases, liquids and sol.1d.waste.
8. A general statement of expected heat,.glare, noise- vibration,
radiation, electromagnetic disturbance, obnoxious 4;dors,, and
other pollutants, expressed In quantified terms wherever
possible; and the means to be taken to control, reduce, or
eliminate these features.

9. Number of daily plant operating'shifts and hours of operation.

10. The estimated total nufter of employees for construction and for
operations. If the plant operations will Increase on a staged
basis over a period of flma,, the total number of operating employees
at each stage.,

PART 7 (continued)

11. The estimated number.of employees for construction and for
operations on the largest shift.

12. The estimate'd number of seasonal employees (if any) at the peak
season.

13. The estimated number of employees, construction and operating,
expected to be hired in Delaware, to-be hired from,out-of-state,
to be brought from operations in other states.

14. The e stimated expected weekly-construction payroll and operating
payrol,l.
15. The estimated annual amount of State and local taxes expected to-
be paid by the company and by its employees.
16. The'estimated volume of supplies and services for construction
and for operations to be purchased in Delaware (in dollars).

.17. Present type of land use on the project site.

18. Expected date(s) of construction completion and initiation of
operations.

This Document Is Mandatory Only When Requested By The State Planner

Application Number
(to be filled in.by State Planner)

PART 8

Application Supporting.Document

ALTERNATIVES TO THE PROPOSED PROJECT'

Describe alternatives to the project which might avoid all or some of
the adverse environmental effects. Design changes or-process alternatives
should be analyzed. The alternative of not carrying out the project should
be included. Dollar costs and environmental impacts of the alternatives
should be described.

COASTAL ZONE ACT
ADMINISTRATIVE, APPEALS, AND HEARING PROCEDURES

The purpose of this material is to
provide information on Application Procedures
for coastal zone permits, Appeals Procedures,
and Public Hearing Procedures, so that permit
applicants and others may understand the
procedural requirements of the Coastal Zone
Act.

This material Is supplementary, not part
ofV the Appii6ation for a coastal zone permit
and may be retalne,d for your information,

PROCEDURES FOR ADMINISTRATION OF COASTAL ZONE
REQUESTS FOR STATUS DECISIONS,
PERMIT APPLICATIONS AND APPEALS, AND
PUBLIC NOTICES OF HEARINGS AND DECISIONS.

1. Request for Project Status Decision

.Prior to,formal application for a coastal zone permit, the applicant
wili request a project status decision from the State Planner. To
provide the State Planner with information necessary for@himto
determine project status, a detailed description of project operations
must be submitted to him.

Based on +he information provided, the State'Plarner.will determine
the status of the proposed project under termsof the Coastal.Zone
Act and adopted regulations. Each project will be classified as one
of the following:

The project Is a use not regulated by,the Coastal Zone Act.
If so, the State Planner notifies the applicant in writing
that his project Is not covered by the Coastal Zone Act and
requires no permit from the State Planner.. Public Notice Is
given of the-decision.

2. The,project Is a prohibited heavy Industry or off-shore bulk
product transfer facility. !f.so, the State Planner notifies
the applicant in writing that his project is a pro.hibited,use
intheCoastal Zone.

3 The project Is manufacturing allowable by permit in the Coastal
Zone. If so, the State Planner notifies the applicant in writing
that he may file a formal application for a coastal zone permit.

II. 'Formal Application for a Coastal Zone Permit

Step 1.

Application is made in writing on proper forms to the State,Planner.

The application must include:

1. application for a coastal zone permit (Part 1 of Record.of
Appi,ication)-

1.1 evidence of local zoning jurisdiction approval

1.2 a description of project construction*and operations, Including
a project location mao

1.3 an environmental impact statement

1.4 an application letter of affirmation

In addition, the application should include where applicable In the
opinion of the applicant and must include when requested by the State
Planner:

2. the project cost and property record

3. a project site plan, includi ng schematic elevations and plans

4. a description of project water and sewerage systems including
use of waters for processing, waste removal and cooling

5. a project grading plan (including descriptions of erosion
controls, landfill and dredginq operations)

6# a project storm drainage plan

.7. detailed description of project construction and operations

8. alternatives to the proposed project

Step 2.

The State Planner views the permit application material with the
advice and assistance of appropriate State agencies.

Step 3.

The State Planner advertises a public hearing on the permit application.
The public advertisement is as follows:

1. It is placed twice in at least one (1) daily newspaper of general
circulation in Delaware,,and in at least one (1) daily or weekly
newspaper of general circulation in the county where the project
Is located.

2. The first advertisement appears at least fifteen (15) days prior
to the hearing date; the second advertisement appears at least
seven (7) days prior to the hearing date.

3. The public advertisement states the time, date, and place of the
hearing, and briefly describes the purpose of the hearing.

Step 4.

The public hearing on the' lication is held.
'permit app

Step 5.

Within ninety (90) days of receipt of a complete permit application,
the State Planner makes his decision on the application. The decision
may be:-

1. to grant the permit
2. to grant the permit subject to conditions and'modifications
attached to the project plans
3. to deny the permit

Step 6.

The State Planner notifies the permit applicant In writing of his.
decision, stating the reasons for his decision. Notification Is
made by certified mail return receipt. Simultaneously, the State
Planner notifies'the public of his decision by placing an adver-
tisement in at least one (1) daily or weekly newspaper of general
circulation in the County where the project Is located.

If the State Planner's decision is to grant the permit,he so.
notifies the applicant In writing. A permit granted.1s conditional
on the applicant's receipt of all other applicable permits.trom
State agencies and on payment by the applicant of 611 coastal zone
permit application fees and charges.

The permit is dated to take effect on the fifteenth (15th) day after
public announcement of the State Plannerts decision. This is to . . .
allow the required period for decision appeals. If an appeal is filed
within this fourteen (14) day period, the permit will be withheld by
the State Planner until the appeal is finally decided.

Ill. Appeal to the State Coastal Zone Industrial Control Board

Step 1.

The permit applicant or any aggrieved "person" (as defined by the
Coastal Zone Act) may appeal the State Planner's decision on the
project statu s classification or the zone permit application. Jhe
appeal must be filed within fourteen (14) days of the State Plannerts
public announcement of his decision. The appeal must.be filed with
the Chal man of the Industrial Control Board on the proper.appeals
form and accompanied by a check or money order for one hundred dollars
($100), for the appeals fee, made out to the Delaware State Planning
Office.

Stop 2.

Public advertisement of the appeals hearing is made at least ten (10)
days prior to the hearing date in at least one 0.) daily newspaper of
general circulation in Delaware and in at least one (1) daily or weekly
newspaper of general circulation in the county where the project is
located. The public advertisement-will state the time, date, place
and purpose of the hearing.

Step 3.

The public hearing on the appeal is held. The hearing will have these
characteristics:

1. the public may attend and be heard
2. all proceedings are a matter of public record
3. a transcript or recording of proceedings must be kept
4. the appellant may be represented by legal counsel

Step 4.

ys of its receipt
Following the public hearing and within sixty (60) da
of the appeal application, the Industrial Control Board will make its
decision on the appeal. The decision will be made in writing and copies
will be sent to the State Planner and to the appellant by certified mail
return receipt.

The Board Will publicly announce its appeal decision by advertising in
at least one -daily newspaper of general circulation in Delaware and in
at least one daily or weekly newspaper of general circulation in the
county where the project is located. Upon notification of an appeal
.decision granting a permit, the State Planner will release the zone
permit to the appellant after twenty (20) days following announcement-
of the Board's decision.

IV. AMeal to the Superior Court

Any person agg rieved by a final order (appeal decision) of the Industrial
Control Board may appeal in writing to Superior Court for the county where
the permit applicant's project is located. The State Planner may appeal
-to Superior Court.

Appeal notice must be filed within twenty (20) days of the dateof the
Industrial Control Board's public announcement of its appeal decision.

Basis for the appeal to the Superior Court can only be on the issue of
the Board's abuse of its discretion in applying standards set forth in
the Coastal Zone Act and the regulations adopted to the facts of the
case at issue. The appeal shall be based on the record of proceedings
before the Board.

REGULATIONS FOR CONDUCT OF PUBLIC HEAR'INGS REQUIRED BY
THE COASTAL ZONE ACT

A. Public Hearin2s on Permit Applications to the State Planner

1. The State Planner, or his designated.representative, shall be
the moderator of the hearing. The moderator shall be responsible
for making all arrangements for the hearing, including required
publication of public notice. The moderator is also responsible
for the conduct of the hearing.

2. Permit applicants and all others wishing to speak at the hearing
may be represented by legal counsel.

3. At the beginning of the hearinq the moderator shall explainthe
purpose of the hearing and the rules of procedure.

4. Th e entire hearing shall be covered by stenographic record. A
transcript of the hearing shall be available for public inspection
in the office of the State Planner in Dover., or in the county
planning offices in New Castle and Sussex Counties when the project
is located in either of those Counties.

5. The Coastal Zone Permit applicant shall have the opportunity to
explain his project.

6. Following the permit applicant's explanation of the project,
members of the public shall be given tho,opportunlty to make
their statements. Each speaker shall identify himsel.f by name,
address and organization,represented (if any).

7. Questions from the floor may be addressed to the moderator who
wil-I make the decision whether or not the question shouldbe
answered.

8. When there are no further statements to be made., the hearing
shall be closed by the moderator.

9. Written statements may be submitted to the State Planner if they
are received'not later than five (5) calendar days after the date
of the public hearing.

10. So that the public may,be informed of the nature of the project
for which a permit application has been filed, the publ1shed
notice of the hearing shall bri-efly summarize the lmporta@t
characteristics of the project. Members of the public wishing
more detailed information about the project may view copies of
the project application papers in the office of the State
o'u
Planner in Dover, or in the c- nty planning offices in New Castle
and Sussex Counties when the project is located in either of those
Counties.

'All

B. Public Hearings on Appeals to the State Coastal Zone Industrial
Control Board
1. The Chairman of the'Industrial Control Board, or his designated
representative, shall be the hearing moderator. 'The moderator
shall be responsible for the conduct of the hearing. The State
Planner sh'all be responsible for making all arrangements for the
hearing including required publication of public notice.

2. The appellant and members of the public wishing to be heard at
the appeal hearing may be represented by legal counsel.

3. The appellant shall be alven the opnortunity to expla,in the
nature of the appeal.

4. The appellant may be questioned by members of the Industrial
Control Board or by persons at the request and on behalf of the
Board. Questions from the floor may be addressed to the moderator
who will make the decision whether or not the question should be
answered.

5. Members of the public may make statements about the appeal. All
those wishing to speak shall id@ntifV -FtTemselves by name, address,
and organization represented (if any).

6. The entire meeting shall be covered by stenographic record. A
transcript of the hearing shall be available for public inspection
in the office of the State Planner in Dover, or in the county
planning offices of New Castle and Sussex Counties when the project
being appealed is located in either of those Counties. All appeals
hearing records shall be kept in a file specifically set aside for
the Industrial Control Board in the office of the State Planner.

7. When there are no further statements or questions, the appeals A-
hearing shall be closed by the moderator.

C. Public Hearings on a Comorehensive Plan, ruidelines for Acceptable
Manufacturing Uses, and Elaboration of the Definition of Heavy Industry

1. The Chairman of the State Coastal Zone Industrial Control Board,
or his designated representati-ve, shall be the moderator of the
hearings. The moderator sh al,l be responsib'lo for the conduct of the
hearings. The State Planner shall be resnonsible for advertising
and making all arrangements for the hearings.

2. The comprehensive plan for the coastal zone, guidelines for
acceptable manufacturing uses, and elaboration of the definition
of heavy industry shall be described and explained.

3. Upon completion'of the explanation of the comr)rehensive plan,
guidelines, and definition of heavy industry., members of the
public may make statements and ask questions. Each person making

a statement or askinq questions shall state his name, address,
and -organlzation rep-r-e`s-e@nted M any).

4. When the moderator determines that there are no further statements
or questions and that no member of the Industrial Control Board or
the State Planner has anything further to say, he may close the
hearing. If circumstances deem a second hearing advisable, the
moderator may adjourn the hearing to a later date.

5. Written statements for the hearing record may be submitted to the
State Planner at any time between the date of public announcement
of the hearing and the date of the hearing, and will be accepted
after the public hearing if received within seven (7) calendar
days of the hearing date.

DELAWARE

COASTAL ZONE PERMIT

DATE.

NUMBER

ISSUED TO

TO PERMIT

SITE LOCATION

SIGNATURE
(Delaware State Planner)

Notice:

1. This permit is conditional upon receipt of all other applicable
permits.from State agencies.

2. If any significant changes or deviations are to be made in plans,
construction, or operations, as approved by the State Planner,,
the applicant shall notify the State'Planner. The permit approval
may be denied or revoked by the State Planner and a new permit
application required if he deems these changes or deviations to
be unnecessary and of actual or probable ham. to the purposes
of the Coastal Zone Act.

STATE COASTAL ZONE INDUSTRIAL CONTROL BOARD

ADMINISTRATIVE CHECKLIST FOR COASTAL ZONE APPEALS

Appeal Number
Name of Appellant
Date of State Planner's Decision Notice
Date of Receiving the Appeal
Date of Public Hearing Advertising
Date and Place of.Public Hearing
Date of Appeal Decision

Nature of the Appeal Decision
Date of Appeal Decision Public Notice
Date of Appeal to Superior Court
Appellant to Superior Court
Superior Court Decision Date

Nature of Superior Court Decision
Attorney General.'s Cease and Desist,
Order, Date
Court of Chancery Injunction, Date

.Date Recei.ved (to be filled Appeal. Application Number
in by State Planner) (to be filled in by State
Planner)

STATE COASTAL ZONE INDUSTRIAL CONTROL BOARD

APPLICATION TO APPEAL FROM A DECISION OF THE
STATE PLANNER

DATE 19

A. Name of the Appellant

Address and Telephone Number

B. Name of the Project Being Appealed

C. Coastal Zone Permit Application Number of the Project.Belng Appealed

(to be filled.in by State Planner)

D. Date of Public Notice of State Planner's Decision

E. Signature of the Appellant

Position or Title (if any)

Please include the-appeal fee,of One Hundred Dollars ($100) with this
,Appeal Application. The check or money order should be madelout to,the:.

Delaware State Planning Office

.Submit the completed Appeal Application including the appeal fe6, within.
fourteen (14) days of the State Planner's public notice of his decision
on the Coastal Zone permit applicationto:

State Coastal Zone Industrial. Control Board
Thomas Collins Building
530 South duPont:Highway
@Dover, Delaware 19901

APPENDIX 3

Definition of Non-conforming Use "Expansion or Extension"

COASTAL ZONE ADMINISTRATIVE REGULATIONS

-DEFINITIONS-

In order to clarity the types of actions covered by the term "expansion

or extension" of non-conforming uses, this term is defined as follows:

"ExDansion or Extension" means a change of existing processes, facilities
or buildings which signi4icantly increases the
production capacity, land use area or environmental
impact.

APPENDIX 4

Coastal Zone Legal Opinions of the Attorney General

100

STATE oF DIELAWARE

DEPARTMENT OF JUSTICE

W. L&IRD STABLER, JR.
Al"RNET GENERAL Wilmington,, Delaware

January 20, 1972

Mr. David R. Keifer, Director
Planning Office
Executive Department
State of Delaware
Dover, Delaware 19901

Re: Coastal Zone Act Bulk
Transfer Facility
(El__Paso-Eastern Company)

Dear Dave:

I have reviewe d the material submitted to you'with
regard-to the liquid natural gas (LNG) terminal which El Paso
Eastern Company.proposes to built in New Jersey with docking
facilities extending into the Delaware River. I agree with
your determination that this facility is an offshore bulk product
transfer facility as that term is defined by the Coastal.Zone
Act. However, there may be some question as to whether or not
the terminal is excepted from 7 Del. C. �7002(f) by virtue of the
fact that it is "a docking facilTt-Y o_r pier for a single industrial
or manufacturing facility for which a permit is granted".

it is my opinion that the El Paso Eastern terminal does
not fit within the "single industrial or manufacturing facility"
exception. The Delaware courts have uniformly held that the
meaning of a statute depends on the intent of the legislature and
that such'intent must be ascertained from aninterpretation of
the act as a whole. The facts contained in the letter from the
El Paso Eastern Company indicate that the LNG terminal in question
is-merely a way station in the natural gas-transportation,system
which El Paso Eastern is endeavoringto develop. It is-quite clear
that the legislative intent was to permit docking facilities where
such facilities would benefit such industries as would be granted
permitg to operate in the Coastal Zone. Here the situation-is
reversed. The terminal will only exist as an adjuftct to the docking
facility. In other words, the important part of the project to
El Paso Eastern is not the "industrial facility"-but the docking
facility Further, I assume that the facility proposed by El Paso
Eastern is not the type of "single industrial or manufacturing
facility" for which your office would grant a permit under 7 Del. C.
�7004. The statute specifically mandates that such approval is-
necessary.

103

Mr. David R. Keifer,
Page 2
January 20, 1972

With specific reference to situations similar to the
.one here in issue, it is my recommendation that your-office
more clearly define "single industrial or manufacturing facility".
The definition should explicate the legislative intent to.allow
an exception for docking or pier facilities only where the
facilities are to be used in conjunction with industries of the
type permitted under 7 Del. C. �7003. The definition I envision
will permit your office to eValuate applications for construction
onthe New Jersey shore as if they were applications for con-
struction on the Delaware shore. Such a standard would negate
claims that applications which require the approval of more than one
governmental agency are acted upon by Delaware in an arbitrary or
capricious manner. However, it must be clear that Delaware is
not attempting to regulate development beyond the state boundary.
Therefore, any reference to potential development in New Jersey
should be avoided.

If you should wish to discuss this matter further, please
do not hesitate to contact me. Also at this time I would like
to stress that this is an informal advisory opinion. Please advise
me ifa formal opinion becomes necessary.

Sincerely,

W. Laird Stabler,, Jr.
Att orney General

WLSJr:.ls.

104

STATE OF DELAWARE
DEPARTMENT OF JUSTICE

W. LAIRD STABLER. JR.
ATTORNEY GENERAL August 16, 1971

Mr. David R. Keifer, Director
Delaware State Planning Office
Thomas Collins Building
530 S. DuPont Highway
Dover, Delaware 19901

Dear Mr. Keifer:

You recently requested an opinion from the Depart-
ment of Justice with respect to an installation proposed by
the Delaware Terminal Company. Your specific inquiry was
directed to the relationship between this installation, the
"Coastal Zone Act". and the State Planning Office.
An examination of the "Coastal Zone Act" and the
information available concerning the proposed installation
wakes it obvious that a specific answer to your question is
impossible until the legislative mandate of subsection (c),
of 7 Del. C. � 7005 has been carried out. The pertinent
language of 7 Del. C. � 7005 (c) is:

The State Planner shall develop
and propose ... regulations for the further
elaboration of the definition of 'heavy in-
dustry' in a manner consistent with the..
purposes and provisions of this chapter.
Such plan and guidelines shall become binding
regulations upon adoption by the Board after
public hearing."

After this task is completed, this office will be
better able to assist you in the determination of "whether
the proposed use is, according to this chapter and regulations
issued pursuant thereto, (1) a heavy industry use under section
7003; (7 Del. C. � 7005 (a)) or whether some other standard
should. be applied to this proposed installation.

105

Mr. David R. Keifer, Director August 16, 1971
Delaware State Planning Office Page 2

If I.can be of any further service, please don't
hesitate to contact me.

Ve@@y ti'uly yours@

Richard', H. Schliem, III
Deputy Attorney General
RHS:

cc: W. Laird Stabler, Jr., Esq.
Attorney General

William 0. LaMotte., III, Esq.

106

STATE OF DELAWARE
DEPARTMENT OF JUSTICE

W. LAIRD STABLER,JR.
ATTORNEY GENERAL Wilmington, Delaware

September 21, 1971

TO: David R. Keifer, State Planner

FROM: W. Laird Stabler, Jr., Attorney General

QUESTION: Nature of the "Bulk Product Transfer
Facilities" Prohibited by �7003 of the
Coastal Zone Act.

REQUEST NO: S268

I. QUESTION

You have asked us to provide you with a review of

the Coastal Zone Act with particular reference to what kind

of bulk product transfer facilities are absolutely prohibited.

We conclude that such facilities are prohibited if all or.
part of them are riverward of the mean low water mark.

II. OPERATIVE PROVISIONS OF THE STATUTE

The operative provisions of the Coastal Zone Act

are Sections 7003. and 7004.: Section 7004 permits certain

manufacturing uses by permit and is not applicable. Sec-
tion 7003 absolutely prohibits off shore gas, liquid or
solid bulk product transfer facilities which are not in
operation on the date of enactment of this chapter in

107

the Coastal Zone It is apparent that the word "off

shore" modifies three kinds of "bulk product transfer

facilities": "gas", "liquid"-and "solid". The question

then arises what is an "off shore" bulk product transfer

facility which is prohibited as contrasted with-one that

is not off shore and is, therefore, permitted?

III* THE PURPOSE CLAUSE

The purpose clause of the Coastal.Zone Act (S7001)

is relevant. It provides:

"It is further determined that off-shore
bulk product transfer facilities represent
a significant danger of pollution to the
coastal zone and generate pressure for the
construction.of industrial plants in the
coastal zone, which construction is declared
to be against public policy. For these
reasons, prohibition against bulk product
transfer facilities in the Coastal Zone
is deemed imperative."

Since the statute prohibits only "off shore" transfer

facilities, we construe "bulk product transfer facilities"

as used in the last sentence of this section to refer only

es,
to "off shore" bulk product transfer faciliti

"2-

108

IV. THE DEFINITION SECTION

Similarlye in, subsection (f) of S7002, the defin-
ition of "bulk product-transfer facility".would be mean-
ingless if it did not, alsot'refer to "off shore" bulk

product transfer facilities, there being no prohibition.

against such facilities unless "off shore". The context.
of the definition@justifiesi the same conclusion. Thust

an "off, shore bulk product transfer facility" is:

a port or dock facility, whether an
artificial island,or attached to shore by
any means, for the transfer of bulk quan-
tities of any,substanc?' from vessel to
on-shore facility or vice-versa.11

The exclusions from the definitions are also rele-

vant. Certain kinds of "docking facilities" are excluded.

Other docking facilities not excluded must, by definitiont

be included if they.are "off shore" docking facilities.

What then does "off shore" mean? Webster defines

"off shore".as "situ ated, carried on, or working, at a

distance from the shore; as, off shore fishing or fisher-

men; an off shore island". Webster New International

@Dictionary_of the EnglishLanguage, 2nd Ed., 1958. This

-3-

109

cannot be the intention of the Legislature because such

facilities include dock facilities "attached to the shore

by any means" and the Legislature felt it necessary to ex-

clude the docking facilities for the port of Wilmington

[�7002(f)]. Therefore, '1off shore" means extending beyond

the shore. An "off shore" facility [email protected] it is at-

tached to the shore,

V. DEFINITION OF SHORE AND
OFF SHORE

We should the n turn to the definition of the word

Ushore". Shore is quite clearly defined in Delaware Law.

The Chancellor in Harlan & Hollingsworth Co. v. Paschall

5 Del.Ch. 435, 464, defines'"shore" as follows:

"The shore may therefore be defined as the
land between the,high and low water marks."

A later Chancellor, sitting as a judge ofthe

Superior Court (by designation) defines."shore" the same

way (State v. Pennsylvania Railroad Co.t 228 A.2d 587, 600):

"In Harlan & Hollingsworth Co. v..Paschallf
supra, the Chancellor defined 'shore' as
the 'land between the.high and low water

-4-

110

marks' (5 Del.Ch. p.464). That definition
is general and further refinement is neces-
sary so that the area here involved may be
fixed with certainty.
Obviox'isly, the area of foreshore follows
from the position of its boundaries, that
is, the location of high and low water marks.
And as to these, definitions vary. it has
been said,for example, that high water mark
is the 'line on the shore reached by the
water at the high or flood tide'; and low
water mark is the 'line on the shore of
the sea which marks the edge of the waters
at the lowest point of the ordinary ebb
tide'. Black's Law Dictionary (4 Ed.)
p. 1763.11

In II Shalowitz, "Shore and Sea Boundaries",,

pages 334-5, the definition of "shore" is given in nautical

terminology. It is not different from the Delaware defini-

tion for our purposes:

"Shore. -- This is the most important of
the four zones, and extends from the low-
water mark inshore to the base of the cliff
(large or small), which usually-marks the
landward limit of effective wave action.
It is the zone over which the line of con-
tact between land and sea migrates."

"In the'field of riparian land ownership
and where the common law prevails, the Su-
preme Court has held the term shore to be
the 'land between ordinary high and low-
water mark, the land over which the daily
tides ebb and flow'. Used in this sense,
shore is synonymous with foreshore. The
backshore, under this interpretation, would
be the zone extending from the high-water

line to the coast.

From the standpoint of shore and sea boundariese
the term shore has a special significance. Its V
inshore limit--the high-water,line--marks the
boundary of private property in most of the
states, and its offshore limit--the low-water
line--forms the baseline for the measurement
of seaward boundaries."

See also Borax Consol. v. Los Anaeles, 296 U.S. 1,0#

56 S.Ct. 23, 29 (1935) (per Hughes C.J.).

off shore would be, therefore, not on the shore,

and extending beyond the shore or extending beyond the

mean low water mark.

VI. CONCLUSION

We conclude that the Legislature absolutely pro-

hibited gasr. liquid and solid bulk product transfer fa-

cilities in the Coastal Zone if all or any portion of such

facilities are found beyond the mean low water mark. If

such facilities are exclusively constructed "on shore",

that is to say entirely upland of the mean low water mark,

they cannot be "off shore" and they are not prohibited by

this law.

Sincerely,
4 daAl (Z11i
W. Laird Stabler, 4Y.@
Attorney General

STATE OF DELAWARE
DEPARTMENT OF JUSTICE

W. LAIRD STABLER, JR.
ATTORNEY GENERAL Wilmington, Delaware

September 21, 1971

TO: David R. Keifer, State Planner

FROM: W. Laird Stabler) Jr.) Attorney General

QUESTION: What date should be used to establish

the mean low water mark as used in the

definition of "shore' in the Coastal Zone Act?

REQUEST NO: S268(a)

By opinion No. S268 we have defined "shore"

as it pertains to off-shore bulk product transfer facilities.

In your letter of September 16, 1971, you state that it would

be logical to use the mean low water mark as it existed on

the date the Coastal Zone Act was enacted. I concur with your

logic, since to allow the mean low water mark to be altered
by filling and/or bulkheading beyond the mean low water mark

would make the Act a nullity.
I call your attention to the fact that �7002(b)
would apply where filling and/or bulkheading was completed
prior to the effective date of the Act. �7002(b) is as follows:.

113

"'Non-conforming usel means a use wh ether
of land or of a structure, which does not
comply with the applicable use provisions
in this chapter where such use was lawfully
in existence and in active use prior to
the enactment-of this -chapter." (Emphasis Supplied.)

Sincerely,

W. Laird Stabler,_:R.
Attorney General

114

Nov I "S 19"""

STATE oF DELAWARE
DEPARTME-VT OF JUSTICE

W. L&TIM STABLER, JR.
ATTORNEY GENERAL Wilmington, Delaware November 11, 1971

Mr. David R. Keifer
Director., Planning Office
Executive Department
State of Delaware
Dover, Delaware 19901

Dear Dave:.

While I have discussed with you your various letters
concerning certain interpretations of the Coastal Zone Act, I do.
sincerely apologize for taking such a long time in writing to
you as I promised at the last Cabinet Meeting. Rather than write
three,separate letters in,reply to your inquiries, I will attempt
to answ *er your questions below with a proper designation. I would
like to again stress that this is an informal, advisory opinion.
If you want a formal opinion as to any of the subjects, please so
advise.

-a,l. Re: Delaware Terminal Company (letter of
September 29,1971) - whether the shoreline'follows the line that
existed prior to the time that,the slip was constructed or whether
-the shoreline follows the configuration of the slip.
It appears that the shoreline'would follow a gradual
erosion or accretion, but would not follow a sudden alteration
thereof such as a breakthrough as a result,of a storm or of a
digging of a slip such as,the one in question. Therefore, the
shoreline as defined in my earlier opinion would not follow the
configuration of the slip, but instead the shoreline existing
prior to the construction thereof.

--@$2. Re: Port of Wilmington facility.

(a) I concur with the conclusion in your letter of
.October 14,,1971 that the exemption -ranting the Port of Wilmington
0
under 7 Del. C. �7002(f) refers to docking facilities only and not
to any otFer facilities or uses. Therefore, no new heavy industry
may be built:at the port and any new or expanded manufacturing use
may be built only with a Coastal Zone permit.

-115

Mr. David R. Keifter
Director, Planning Office
November llj 1971
Page Two

(b) I further concur that it was the Legislature's
intent to exempt future as well as existing port docking facili-
ties. Therefore, the Port of Wilmington may build new docking
facilities on filled land now owned by said Facility.

.3. Re: First State Pipeline Company

In your letter of October 14, 1971, you advise of
the above company's plans to construct a docking facility approx-
imately twenty-four miles off'Rehoboth Beach with a pipeline on
the ocean floor reaching the shoreline immediately south of Cape
Henlopen State Park and running westward to a proposed tank farm
to be located on the east bank of the Lewes-Rehoboth Canal.

While this is an unusual situation, I would suggest
that your position would'be that this would be-an off-shore bulk
transfer facility. To hold otherwise would vitiate the absolute
prohibition against such a facility as set forth in the Coastal
Zone Act.

Finally, I have assigned Thomas D. Whittington, a
newly appointed Deputy Attorney General, to assist you in all
matters pertaining to the Coastal Zone Act. Tom is extremely
interested in environmental matters and I am sure that he will
be of great assistance to you'as well as to me. Therefore, when
and if you have any questions which require immediate attention,
I would suggest that you contact him at the Civil Division in
Wilmington.

Again, my apologies for the longdelay, but it seems
like everything is piling up these days!

Sincerely,

W. Laird Stabler, Jr.
Attorney General
WLS.Jr/lgj
cc: The Honorable Thomas D.J. Whittington, Jr.

116

STATE oF DELAwAiRE
DEPARTMENT OF JUSTICE

W. L&IRD STABLER, JR.
ArrONNUT 03"It" Wilmington, Delaware
November 29, 1971

TO: David R. Keifer, Director
State Planning Office

FROM: W. Laird Stabler, Jr.
Attorney General

QUESTION:. Does 7 Del. Code �7005(c) require a comprehensive
plan lim-ited7-tomanufacturing uses only or was it
the intent of the General Assembly.for the compre-
hensive plan to also include other types of land
use such as residential, commercial,. agricultural
and recreational uses?

REQUEST NO. S290

It is my opinion that.the "comprehensive plan" to

be developed by the State,Planner under 7 Del. Code �7005(c)

is limited to manufacturing uses only.. The pertinent part

of this section is as follows:

"The State Planner shall develop and,
propose a comprehensive plan and guidelines
forthe State Coastal Zone Industrial Control
Board concerning types of manufacturing,uses
deemed acceptable in the Coastal Zone..."

This language is quite specifi c and precludes further investi-
gation as to the possible legislative intent for this compre-

hensive plan to include other,types of land use.

117

If you have any further questions, please don't
hesitate to call on me.

Sincerely,

W. LAIRD STABLER, JR.
Attorney General
WLS0Jr/lgj

118

. . . ... .. .... .. ...

STATE OF DELAWARE
DEPARTMENT OF JUSTICE

W. LAIRD STABLER, JR.
AWORNNY GENERAL WILMINGTON, DELAWARE

February 15, 1972

Mr. David R. Keifer
Director
9tate Planning Office
Dover,.Delaware .19901

Re:r The Role of the State Planner.at the
Public Hearings on Permit Applicatio.hs,-
the ProperTerm for his Role, and the
Record Requirements for Appeal to
Superior Court - Under the Coastal Zone
Act

Dear Dave:

This is our opinion in answer to the questio ns
posed in your letter of January 21, 1972. With regard to
the State Planner's role in the hearing required by 7 Del.
C. �7005, it should be no'ted that the State Planner is
under an affirmative duty to hold a public hearing upon
all requests for permits for manufacturing land uses and.
for the expansion or extension of nonconforming uses.
The only hearing requirement set forth in the Coastal
Zone Act is that the hearing be public. In the context
of the Act, the Planner's hearing should provide the public
with notice of the permit request and an opportunity to,
be heard. The hearing also provides the 'Planner with an
additional source of information on the permit request.
Since the State Planner is the ultimate fact finder and
decision maker on any-permit request, his role is similar
to that of a judge during a, trial. Therefore, as a judge
presides at a trial where he is expected to render a

119

Mr. David R. Keif er
February 15, 1972
Page 2.

decision, it follows that the. State Planner may preside
at a hearing where he is expected to render a decision.
Pursuant to 7 Del. C. �7005(b), the State Planner may
issue regulations establishing procedures to govern the
conduct of his hearings. It is the opinion of this office
that-the State Planner., with the approval of the Coastal
Zone Industrial Control Board, may act as "hearing officer"
and may do so under any title which he cares to adopt.

With regard to the type of hearing record re-
quire@d-for hearings under the Coastal Zone Act, it should
be noted that there isno requirement of a record for the
State Planner's hearing.. If viewed in isolation, the mere
exclusion of a record requirement would not be determina-
tive of the need for a record. However, two other factors,
enter into our consideration of this question. First, any
appeal from the State Planner's decision results in a
hearing de nova before the Coastal Zone Industrial Control
Board pursuant to 7 Del. C. �7007(c). Second, there is a
requirement that a record be taken of the appeal hearing
before the Coastal Zone Industrial Control Board. It is
without question that-the express statutory language re-
quiring a record for the appeals hearing impliedly ex-
cludes any necessity for a record at the State Planner's
hearing. However, as noted above, it is within the authority
of the State Planner to issue a regulation which requires
a record.

The "record" required by hearings under the
Coastal Zone Act may be taken via electronic recording
devices. See the attached copy of a recent Attorney
General's Opinion on this subject.

With regard to the record necessary for appeal
to the Superior Court, it should be noted that the appeal
IS made on the record below. It is therefore important
to develop a complete and accurate record of the proceedings
before the Board.- The general requirements for a record

120

Mr. David R. Keifer
February 15, 1972
Page 3*

on appeal to Superior Court are set forth in International
Acceptance Co., Del. Supr., 280 A.2d 733 (1971). These
requirements,are:

1. verbatim transcript of the proceed4ngs;'
2. sworn testimony which supports the Board's
decision;
3. an opportunity for the applicant to present
evidence and cross examine witnesses;
4. written findings of fact and conclusion;
-5. -an official written decision by the Board.

if I may be of any furtherassistance to you in
this matter., pleaselet me know.

Very truly yours,

W. Laird Stabler, Jr.
Attorney General

WLS,Jr./slb

cc: Thomas D. WhiAtington, Jr.

Enclosures

121

STATE OF DELAWARE
DEPARTMENT OF JUSTICE
WILMINGTON, DELAWARE

September 1, 1971

OPINION TO: The Honorable Hugh Martin
Secretary, Department of
Administrative Services
Capitol Square
Dover, Delaware 19901

OPINION FROM: C. Edward Duffy
State Solicitor

QUESTION: Can the quasi-judicial commissions in
Delaware take advantage of electronic
recordings of testimony and typwritten

transcription service?

REQUEST NO.: S220

In response to the above styled inquiry, it should

initially be noted that each quas-judicial commission under the

control of the Division of Business and Occupational Regulation

has its own unique statutory provision requiring a hearing and

appeals therefrom. As your request was stimulated by the A1coho1ic
Beverage Control and Public Service Commissions, yet your inquiry

encompassed all quasi-judicial Commissions we will rely on the

statutory language relating to those two specific commissions in

reaching an opinion applicable to all.

Before we commence with our interpretation, however,

attention should be directed to the reasons necessitating a hearing

and a record of that hearing. The commissions under your

122

The Honorable Hugh Martin 2.-

administrative, budgetary and clerical control all deal with

business and ocupational regulation. A severe economic impact

generally follows an adverse ruling by a commission. As a result,

the General Assembly has seen fit to permit an -aggrieved party to

appeal this adverse ruling to a court of, law. The Superior Court

functions as the Appellate Court in these instances. The difficulty
on this appeal is that "the findings of fact made by the commission

...shall be conclusive, but-the Superior Court may review

questions of law involved in any final decision or determination of
the (c)ommission." 24 Del. C. �2914. This means, in essense, that,

in order to perfect a statutory right of appeal, you must present to

the Appellate Court a sufficient re cord ofthe proceedings at the
hearing to enable the court to review. Toward this end the General

Assembly has provided statutory authority for a record. One example

of such a provision is codified in 4 Del. C.. �541 and pertains to
the Alcoholic Beverage Control Commission, which provides in part:'

"(b) The hearing shall be conducted by the
.Commission and a record of the hearing, shall be
made and kopt by the. Commission. The record shall
include the evidence, the Commission's findings of
fact, the Commission's decision and a brief state-
ment of the reasons therefor."

It is notable in this instance that the General Assembly
has not specified the procedure to be followed in making the record,''
but simply that it be made. Itis, therefore, our opinion that an

electronic record shall suffice.

123

The Honorable Hugh Martin
3.

A second exaqmple of a statutory provision necessitating

a record is found in 26 Del. C. �183, pertaining to the Public

Service Commission which states:

"(a) A full and complete record shall be kept of
all proceedings had before the Commission, or its
representative, in any formal hearing, and all testimony
shall be taken down by a reporter designated by the
Commission. . .

.An interpretation of this type provision must begin with

the word. reporter and the effect that the inclusion of this word

may have on the use of a recording device. Returning once again to the

reason a record is desired, i.e., to perfect an appeal, we find that

it is not the manner in which a record is made that is of practical
significance, but rather the fact that a. record is made complete

with a description of the evidence, testimony, findings of fact and
the final decision. The language of the code is, in a situation such a!!
this, simply a conduit through which the spirit flows. And it is our

opinion that trio guiding purpose behind enactments requiring a record

of administrative hearings is to enable the aggrieved party to appeal.

A situation quite similar to ours at hand is reported, in
D v. Walker, 247 N.W. 350, 124 Neb. 500 (1933). There, a consti-
tutional provision required that all votes in both houses of the

legislature must be viva voce. An electronic roll call device was

constructed.in the chamber for reasons of convenience and economy.

Instead of voting by voice, the legislators pushed buttons, which in
turn activated lights on a large tally board where all could sec.'

124

The Honorable Hugh Martin
4.-

Upon its challenge, the Supreme Court of Nebraska held that:

"The object and purpose of the constitutional
provision [requiring vote by voice] was to give
publicity and required each member of the legislature,
voting on the passage of a bill, to vote publicly. . . .

It was publicity that was aimed at. The electric roll
call device provides that publicity." Dav v. Walker,
supra, 247 N.W. at 352.
Likewise, we conclude that the "object and purpose" of
the statutory provision requiring a reporter was to necessitate

a record which allowed the aggrieved party to appeal. It was to

permit a party to appeal that this provision was aimed at. The

electronic recording device provides that record. It is, therefore,

our opinion that an electronic record fulfills tile "spirit" of the

law and is not contrary to the intent of the General Assembly.

It, therefore, follows that the quasi-judicial commissions

referred to in 29 Del. C. �8808, coming under the "administrative,

ministerial, budgetary and clerical" control of the Division of

Business anti Occupational Regulation are authorized to make records

of their hearings with electronic devices. No attempt has been made

to determine the propriety of electronic recordation in lieu of

shorthand methods in other governmental agency hearings nor in

judicial proceedings.
Sincerely,

C. Edward Duffy
State Solicito

CE0: ls

APPROVED BY:

W.Laird Stabler, Jr.
125
ATTORNEY GENERAL

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