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Cooling Water Intakes & their Fish Kills: Delaware City Refinery Delaware Riverkeeper Network, et. al. v. Delaware Department of Natural Resources and Environmental Control

In October 2013 Delaware Riverkeeper Network brought a legal action to compel the State of Delaware, through the Delaware Department of Natural Resources and Environmental Control (DNREC), to take action on Delaware City Refinery’s (DCR’s) languishing 2002 National Pollutant Discharge Elimination System (NPDES) permit application. The lawsuit was filed in the Delaware Superior Court; DRN represented itself, National Sierra Club, Delaware Sierra Club and the Delaware Audubon Society.

Despite promising settlement negotiations with DNREC and the agency’s commitment to issue a draft permit, our legal action was dismissed by the court largely because the judge invoked a rare procedural mechanism to dismiss our action without a request from DNREC to do so. Even with the dismissal, we were able to create some favorable legal precedent. There were two legal issues in this case: a) whether DNREC had a mandatory duty to process DCR’s permit application and, if so, b) whether DNREC failed to reasonably undertake this duty. The judge initially ruled against us, but on motion for reconsideration we convinced the judge to find that DNREC did have a duty to process the permit application. Thus, in the future, other parties seeking to compel similar agency action may cite this point.

While we secured the substantive outcome we were seeking, issuance of a draft permit for the public to react to and act upon, that outcome was the result of pressure our action brought to bear on the agency, not because of a positive judge’s verdict.  Regardless, our work ensures that the public will have opportunity to comment on and influence the cooling water intake structure technology at DCR. We believe this achievement brings us closer to our ultimate goal of meaningfully reducing the more than 45 million fish kill (for just four species studied) that are occurring at DCR.