by Tom Ellis

ALBANY, NY: Albany Law School graduate, former DEC Assistant Commissioner, and Earthjustice attorney Chris Amato spoke at the March 20 SPB dinner about Oil-by-Rail in Albany.

Mr. Amato said the recent massive increase in North American oil-by-rail shipments impact most of NYS and he hopes to represent a broad coalition on this matter.  The North Dakota Bakken and the Alberta tar sands are different types of oil but both are an issue for Albany and New York.

He said Massachusetts-based Global Companies first came to Albany in 2007 when it bought an Exxon-Mobil facility at the port.  Prior to 2007, oil stored at the Port of Albany was used locally.  Beginning in 2009 Global Co. began bringing hydrofracked oil from North Dakota to the Albany port on trains of 80 to 100 cars.

In 2011, Global sought DEC permits to double to 1.8 billion gallons the amount of oil arriving in Albany, saying falsely there would  be no increase in rail transport.  DEC began implementing its Environmental Justice (EJ) policy that is intended to protect communities of poverty and color who often bear the brunt of hazardous activities.  DEC’s EJ policy requires an applicant to engage the community, develop a community participation plan, and have it approved by DEC.  Global Co. told DEC that no community participation plan was needed and DEC said OK.  DEC issued a negative declaration or “negdec” allowing Global Co. to not prepare an Environmental Impact Statement (EIS), and in November 2012, issued permits allowing Global to double its crude oil shipments through Albany.

Suddenly long lines of black rail cars appeared in Albany.  Residents of the Ezra Prentice Homes and Mt. Hope Apartments noticed the increased rail activity right behind their homes and became concerned and alarmed about the odors, noise, and dangers.

Chris said the “incredibly volatile,” Bakken oil is transported in DOT-111 cars that have thin walls, are puncture prone, and subject to derailment even at low speeds.  Following the July 2013 oil rail explosion in a Quebec town that killed 47 people, all six companies involved in this disaster declared bankruptcy.

The more recent Global Co. proposal would allow installation of seven gas-fired boilers at the Port of Albany to heat heavy viscous — tar sands — oil that cannot be loaded onto ships at room temperatures.   Tar sands oil is almost impossible to clean when spilled.  In Kalamazoo, Michigan, an oil spill into a river has not been cleaned despite more than $1 billion having been spent  Mr. Amato said Global Co will neither confirm nor deny if it would bring tar sands oil to Albany and DEC is not requiring them to do so.

As with the first application, DEC notified Global Co. of the need to comply with the EJ policy, Global Co. said it was not necessary, and DEC said OK.  In late January, the Earthjustice coalition sent DEC a letter reminding DEC of the requirement that Global comply with the EJ policy and prepare an EIS.  DEC responded, ordering Global to prepare a public participation plan.  DEC has issued a Notice of Complete Application despite Global Co.’s application being incomplete due to the missing EJ Community Participation plan.  DEC held a community meeting at the Giffen School on February 12.

Chris said that among the many questions the public has are: the risks of the existing Bakken oil being brought through Albany; and if tar sands oil will also arrive if the boilers are approved.

He said DEC had extended the public comment period on the Global application to April 2, and Global had hired a public relations firm.  He said that up until a few hours earlier, Global had wanted to construct a new building at the port which would have needed an approval from the City of Albany Planning Board, but Global suddenly withdrew the application and said it would use an existing building, thus avoiding the need for planning board approval.

The Albany County Executive and the Albany County Health Department have issued orders blocking the boilers expansion.  Global responded by threatening to sue the county, and said ironically that it had not been consulted.  Chris said the Earthjustice coalition had been planning to sue DEC on March 27 demanding preparation of an EIS, but has been granted an extra two months to prepare this litigation.

Chris concluded his presentation saying Global Co. has also applied for oil burner permits at the port of New Windsor on the lower Hudson River, and hopes to turn the Hudson River corridor into an alternate Keystone XL pipeline.

During the Q&A, when asked if DEC is inept or in bed with Global, Chris said DEC’s current policy may be a result of the agency being gutted since 2008 by budget cuts and retirements.   When asked what is Governor Cuomo’s position on this matter, Chris said, “We would like to know.”

When asked if the Hudson is safe from a spill today, Chris said the first oil ship to leave the port of Albany ran aground, the outer shell cracked, but luckily the ship was double-hulled and no oil leaked.  He said oil trains run along the shore of the Hudson to New Windsor every day and could leak into the river if derailed.

Pete Looker asked if DEC could require Global Co. to post a bond to cover worst case scenarios; Chris said DEC does require bonding but the question that must be asked and answered is: What is the true cost?

Chris said oil arrives via two routes; from Buffalo to Albany and south along the shore of Lake Champlain, both into Albany.  Chris was asked if an EJ case can be made by a rural community; he said possibly.

When asked if the tar sands oil is explosive, he said no but it has other hazards including the release of volatile organic compounds when heated and that it is impossible to clean up when spilled or leaked.  Two questions concerned how can opponents raisen on-site specific issues such as tar sands, climate change, and segmentation of the process.  Chris said the Earthjustice coalition lawsuit will raise segmentation and climate change issues related to the Global Co. proposal.

Greg Bell asked if either the City or County of Albany could legally condemn the rail right of way; Chris said probably not due to federal regulation of interstate commerce.

Tim Truscott said that since the Port of Albany is managed by an authority, the authority can regulate port activities.  Chris said the Global facility if Global uses the building it now desires, it would be in the port district.

Mark Schaeffer insisted that we must demand as a central argument the shut down of the tar sands oil operation due to climate change concerns.  Chris did not disagree but warned to not confuse the issues of the Bakken and tar sands oil.

Chris said DEC is hardly forthright.  Global Co. is authorized to bring in 1.8 billion gallons of crude to Albany annually but currently transports 1.1 billion; DEC says if the application is approved, Global will still be below the 1.8 billion without saying there would be an actual increase from today’s levels.

Chris said cleaning up tar sands oil is like dumping a gallon of oil into a box of kitty litter box and then trying to remove it.   Chris said he is very puzzled that DEC has no concerns about the origin of the oil.  He said, “We live on one planet.”

Update: On March 24, DEC sent Global Co. a letter with 29 questions it wants Global Co. to respond to.  DEC extended the public comment period on the Global Co. application to June 2.  DEC retained the negative declaration, keeping the process closed between itself and Global Co., and still refuses to require an EIS.

The EIS is important because an EIS is a public process.  It begins with a scoping meeting at which any member of the public can identify issues that he or she believes must be included in the EIS, thus considerably broadens the review.

A coalition of eleven environmental groups [SPB was not invited to join] held an Albany news conference April 15 urging Governor Cuomo to require preparation of an EIS.  The groups said: “[W]ithout the best available information about the project and its impact statewide, or even the means to adequately disseminate that information, the public has little to comment on.  Moreover, there is no assurance that the information requested of Global will be made available for public review in a timely manner, as the DEC did not provide Global with a deadline to respond to the information request…Global has consistently resisted all efforts by local elected and public health officials in Albany to obtain detailed information about its proposal…Common sense and black letter legal precedent require that DEC rescind its negative declaration and require a full environmental impact statement for Global’s related Albany and New Windsor tar sands proposals.”

Why does Governor Cuomo, who ran in 2010 promising the most open and transparent administration in state history, allow an illegal and closed process to continue?  Who is he protecting: the public or Global Companies?  Is he serious about rail safety or mitigating climate change?  Why is the governor so hostile to meaningful public participation?

 

 

Published in May/June, 2014 Save the Pine Bush Newsletter