February 26, 2014 Col. Richard L. Hansen District Commander New Orleans District U.S. Army Corps of Engineers Richard.L.hansen.col@usace.army.mil Martin Mayer Regulatory New Orleans District U.S. Army Corps of Engineers Martin.s.mayer@usace.army.mil Jamie Phillippe Water Quality Louisiana Department of Environmental Quality Jamie.Phillippe@la.gov Elizabeth Johnson Water Quality Louisiana Department of Environmental Quality Elizabeth.Johnson@la.gov RE: Request for public hearings and request for joint consideration of proposed RAM Terminal and proposed MG Midstreaming coal midstreaming operation as connected and/or cumulative actions. Colonel, 1
Thank you for the opportunity to speak with the Corps regarding the proposed RAM Terminal ( MVN 2012 0123 / CUP 2012 0190 ) and the proposed MG Midstreaming coal midstreaming operation (MVN 2013 2690 / CUP 2013 1379 ) on February 13, 2014. We request that this letter and the attached exhibits be entered into the administrative record for both permits. We incorporate by reference our previous comment letters on these permits, and reserve the right to rely on all public comments submitted. I. The Army Corps should reopen the public comment period for RAM Terminal hold public hearings for both the proposed RAM Terminal ( MVN 2012 0123 / CUP 2012 0190 ) and the proposed MG Midstreaming coal midstreaming operation (MVN 2013 2690/CUP 2013 1379 ). We repeat our request that the Army Corps reopen the public comment period for RAM Terminal and hold a public hearing for both of these proposals to allow adequate public participation in these permit processes. To date, the Army Corps has not held a public hearing for either the proposed RAM Terminal or the proposed MG Midstreaming coal midstreaming operation (MG Midstreamer). Martin Mayer indicated during our meeting on February 13, 2014 that the Army Corps does not have any public hearing scheduled or planned. We believe that there is sufficient new information on the RAM Terminal, and new public concerns pertaining to that new information, to warrant reopening the public comment period and holding a public hearing. This information was not available to the public or the Army Corps during the initial public comment period that took place in the spring of 2012. These concerns arise from more detailed information on the RAM Terminal s impact to safety and navigation from the Water Institute/ARCADIS study of terminal s interaction with the Mid-Barataria Sediment Diversion (Diversion), RAM s impact to the diversion itself, the co-located MG Midstreamer and barge staging proposal introduced in December of 2013, and the associated navigation and coastal wetland risks and impacts that these projects pose when considered together. Indeed, we learned at our meeting with the Army Corps on February 13, 2014 that the Army Corps had not seen the Water Institute/ARCADIS study, which outlined the significant potential impacts that the proposed RAM Terminal may have on the Diversion. Attached as Exhibit A. Representatives from the Army Corps also told us during our meeting on February 13 th that the Army Corps had not seen or analyzed the Memorandum of Agreement (MOA) negotiated between RAM Terminals, LLC and the Coastal Restoration and Protection Authority (CPRA). Attached as Exhibit B (together with comment letter on MOA submitted to Louisiana Department of Natural Resources by Gulf Restoration Network, et. al.). The fact that the Army Corps was unaware of both of these documents is very troubling, as they directly relate to the potential impacts of the proposed RAM Terminal and its relationship to the co-located Diversion and should be analyzed as the agency considers granting a permit for this project. 2
We strongly believe that the public deserves a voice on this matter and that all concerns from the public should be heard. There is significant new information (including the MOA, 1 the Water Institute/ARCADIS study, and the permit application for the co-located MG Midstreamer) that was not available to residents and concerned community groups during the initial public comment period. There are many local and state-wide residents who deserve the opportunity to comment on the permits that RAM and MG Midstreaming have applied for; people we cannot speak for and whom may have concerns and information that the Corps has not already taken into consideration. As a public agency charged with protecting the public interest, we believe that it is your duty to acknowledge and oblige this request. II. The proposed RAM Terminal ( MVN 2012 0123 / CUP 2012 0190 ) and the proposed MG Midstreaming coal midstreaming operation (MVN 2013 2690 / CUP 2013 1379 ) are connected actions under NEPA. We, along with the Environmental Protection Agency (EPA), the National Marine Fisheries Service (NMFS), and other public commenters, have previously urged the Corps to perform a full analysis of the impacts of the RAM Terminal in an Environmental Impact Statement (EIS). EPA and NFMS letters attached as Exhibit C. Further, we believe that the Corps must consider the cumulative impacts of both of these proposed developments together in the same EIS, as it is clear that they are connected actions under the National Environmental Policy Act (NEPA). The regulations governing the scope of review for NEPA documents states that government agencies should consider three types of actions when deciding on the scope of review for an EIS: (a) Actions (other than unconnected single actions) which may be: (1) Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they: (i) Automatically trigger other actions which may require environmental impact statements. (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously. (iii) Are interdependent parts of a larger action and depend on the larger action for their justification. 40 C.F.R. 1508.25(a). 1 As outlined in our comment letter to the Louisiana Department of Natural Resources (attached in Exhibit B), we do not believe that the MOA is resolves the physical or ecological conflict between the proposed RAM Terminal and the Mid-Barataria Sediment Diversion. 3
Here, despite the fact that the proposals were submitted by entities with different legal names, it is clear that the actions are in fact connected. First, the close physical proximity of the two coal operations makes it clear that the facilities will have to cooperate and coordinate to operate without conflict, and, in fact, are most likely part of the same operation. Indeed, the proposed location of the MG Midstreamer is directly adjacent to the proposed barge fleeting area for the RAM Terminal. See Exhibits D and E (diagrams submitted by Lanier and Associates in support of MVN 2012 0123 / CUP 2012 0190 and MVN 2013 2690/CUP 2013 1379). The MG Midstreamer is also located in the Mississippi River next to the property owned by RAM Terminal, LLC, and proposes to moor its facility on the same side of the river as the RAM Terminal. Given this close physical connection between the two operations, it is difficult to imagine any way in which the RAM Terminal and the MG Midstreamer could operate separately. MG Midstreamer could not transport or moor ships or barges at this location without in the very least coordinating with the RAM Terminal. In fact, it is more reasonable to assume that the terminal and the midstreaming operation would be operating in concert. The connection between the two operations is further demonstrated by the purpose of both facilities. Both facilities are designed to transfer coal from barges to ships; the commodities that are listed in both permit applications are identical. Furthermore, the agent listed for MG Midstreaming by Louisiana Department of Natural Resources in connection with the midstreaming project, Mr. Charles Wesley, is also the business development director with RAM Terminals LLC. See Exhibits F 2 and G. Both MG Midstreaming and RAM Terminal, LLC have employed the same engineering firm, Lanier & Associates, to complete their permit applications. Finally, the timing of the development of both of these projects demonstrates their connection. The RAM Terminal and the MG Midstreamer are both seeking permits from the Corps at the same time, in the same location, for the same purpose, using the same engineering firm, and employing the same development director. Both projects are being developed simultaneously, almost directly on top of one another. Indeed, it is logical to assume that the development of the MG Midstreamer is an outgrowth of the permitting negotiations that have proceeded for the proposed RAM Terminal. As we have outlined in prior comment letters on the RAM Terminal, the terminal is in conflict with the development and operation of the Diversion. The Louisiana Department of Natural Resources recognized this conflict, and initially rejected an application for a coastal use permit for the RAM Terminal. See Exhibit H. LDNR eventually did grant a coastal use permit for the project, but only after RAM Terminals negotiated an agreement with CPRA, which required that the terminal shut 2 LA DNR s SONRIS database, P CUP 2013 1379, accessed Feb 2014. 4
down its operations at specific times of the year while the diversion was in operation. See Exhibit B. It is therefore likely that RAM Terminals, LLC is working through the MG Midstreamer to develop a midstreaming coal facility adjacent to the RAM Terminal that can operate during the times of the year when the land-based terminal is shut down under the terms of the MOA. The location of the midstreaming facility appears to be carefully selected to be just south of the diversion to avoid the necessity of shutting down during the diversion s operation. The midstreaming facility would thus allow coal to continue to be transported while the RAM Terminal is not operational, and avoid any interruptions in operation. This would prevent any delivery delays that might impact RAM Terminal s relationships with its customers. Given all of the connections outlined above, it is clear that the MG Midstreamer and the RAM Terminal are interdependent parts of a larger action, i.e., development of a coal export operation. The MG Midstreamer depends on the development of the RAM Terminal for its justification; given the incredibly close proximity of the midstreaming terminal to RAM s barge fleeting and dock, it is highly unlikely that the midstreamer could operate in isolation or independently. MG Midstreamer is a logical outgrowth of the RAM Terminal, and is being proposed and promoted by the same individual. Therefore, the actions are connected actions under NEPA, and the significant negative environmental and public health impacts of these proposals should be analyzed together in the same EIS. III. In the alternative, the proposed RAM Terminal ( MVN 2012 0123 / CUP 2012 0190 ) and the proposed MG Midstreamer (MVN 2013 2690/ CUP 2013 1379) are cumulative or similar actions under NEPA. In the alterative, even if the Corps were to conclude that the MG Midstreamer and the RAM Terminal are not connected actions, they still fall within the regulatory definition of cumulative or similar actions, and thus their impacts should be analyzed together in a single EIS. NEPA s regulations define cumulative and similar actions in the following manner: (2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement. (3) Similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions 5
or reasonable alternatives to such actions is to treat them in a single impact statement. 40 C.F.R. 1508.25(a). Here, it is clear that the impacts of the RAM Terminal together with the impacts of the MG Midstreamer will have cumulatively significant impacts, and should therefore be discussed in the same impact statement. First, both will have impacts on the operation and success of the Diversion, as discussed in prior comment letters (hereby incorporated by reference). Specifically, both operations are likely to impact water flow and sediment deposition into the Diversion. In fact, the diagrams accompanying MG Midstreamer s permit application seem to indicate that the midstreaming terminal will be moored on top of the sand bar located adjacent to the diversion. This particular location along the Mississippi River was specifically selected for a sediment diversion based on the location of this sand bar, as it would maximize sediment deposition into the diversion and the newly created wetlands 3. Mooring a floating coal terminal directly on top of this sand bar is likely to impair the rate of sediment deposition and significantly threaten the success of the diversion. Additionally, the RAM Terminal has been shown to have a negative impact on the rate of sediment deposition by its operations north of the diversion, as outlined in the report prepared by the Water Institute. See Exhibit A. Similarly, these proposals are likely to have cumulative impacts on the surrounding wetlands, ecosystems, and communities through offsite emissions and discharges of coal. Both coal terminals and midstreaming operations are known to deposit significant amounts of fugitive emissions while handling and storing coal for shipment. Coal falls into the water during loading and unloading at these facilities, is washed into surrounding environments by storm water and wash water, blows off of piles, vessels, and conveyors, and settles on the river bottom and shoreline. Coal from both of these operations will likely be deposited into the sediment diversion, and impair the growth of vital marsh plants and aquatic species. The cumulative impacts of these fugitive emissions are also felt by neighboring communities in the form of coal dust pollution (the small community of Ironton is less than a mile away from both proposed facilities). Thus, it is clear that these actions are at the very least cumulative actions that should be considered together in a single EIS. Finally, these proposals also qualify as similar actions under NEPA s governing regulations. As outlined above, these proposals have undeniable similarities, which provide a basis for evaluating their environmental consequences together. They are being proposed and developed on similar if not identical timelines and within a very small geographic location. The best way to fully analyze the cumulative impacts of these proposals in a way that fulfills the Corps legal obligations is in a single EIS. 3 Dr Ehab Mesehle, State of the Coast 2012. 6
IV. The Corps must include the proposed Mid-Barataria Sediment Diversion within the scope of this permit. Similar to looking at the MG Midstreamer and the proposed RAM terminal as the same project or cumulatively, these proposed permits must also be looked at cumulatively with the proposed Mid-Barataria Sediment Diversion, which is intended to funnel sediment from the Mississippi River in order to build wetlands on the bay side of the levees. At the February 13, 2014 meeting with the Army Corps, we were told that the impacts the RAM terminal and associated proposals on the Diversion would not be looked at, as it wasn t in the scope of what the Army Corps considered to be its regulatory duties. It is frustrating to see that the New Orleans District is so segmented, as the Ram Terminal and Diversion would be directly adjacent, coal and petroleum coke are guaranteed to fall and to flow into the channel from the air and from the water, and the sediment and water from the Diversion would contaminate additional federal restoration projects in the Lafitte oilfield 4. By ignoring this relationship, the Corps might be complicit in damaging the development and success of the Diversion, which has been identified as one of five near term projects that are critical to the success of coastal restoration efforts. 5 The New Orleans District cannot look at regulation and restoration as two separate things. It is quite arbitrary for the Regulatory Branch of the Army Corps to ignore the recommendation of Army Corps engineers tasked with the design of restoration projects. We thought this was getting better at the District, as leadership staff from the Regulatory Branch had started attending the regular NGO meetings that the District has been holding regarding the coastal restoration projects, but given the statements at the meeting on 13 th February, we feel that this vital integration at the District is not happening. V. The Corps has a duty to consider the environmental justice impacts of both the RAM Terminal and the MG Midstreamer on surrounding communities. Executive Order 12898 (February, 1994) (PDF), Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (EO 12898) directs each Federal Agency to make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations. The Presidential Memorandum 4 Bayou Dupont restoration phases I and II, CWPPRA. 5 See http://www.lca.gov/projects/2/default.aspx. 7
accompanying EO 12898 emphasizes the importance of using the NEPA review processes to promote environmental justice. It directs federal agencies to analyze the environmental effects, including human health, economic, and social effects, of their proposed actions on minority and low-income communities when required by NEPA. Both the RAM Terminal and the MG Midstreamer are likely to have significant negative public health impacts on low-income and/or minority communities in Plaquemines Parish. The historic, African-American community of Ironton is located less than a mile from both of these facilities. The development of both facilities would leave the community sandwiched between an oil refinery, grain elevator, coal terminal, and coal midstreamer upriver, and two coal terminals less than five miles downriver (Kinder Morgan s International Marine Terminal in Myrtle Grove and the United Bulk Terminal in Davant). Ironton residents have previously expressed their fears that increased coal dust and associated pollution will damage their health and their quality of life, and will threaten their community s historic resources and character. The Corps must analyze the potential cumulative impacts of these proposals on the community of Ironton, along with any other potential environmental justice impacts. VI. The Corps should make information more available to the public at their request, without a full FOIA process. When we asked for additional information regarding the Corps engineering analysis, as well as RAM s response to comments, at our meeting on February 13, 2014, we were told that we would have to submit a Freedom of Information Act (FOIA) in order to see this information in the applicant s file. We were frustrated to hear this, as we have been promised more transparency from past District Commanders, as well as through Executive Order. Regarding commitments from past Commanders, since 2006, NGOs have been regularly meeting with the New Orleans Corps District, and the District Commander, starting with Col. Lee, attended these meetings. In these meetings we were told that the District would be more open when it comes to granting the public information. It feels like we have taken a step backwards with the insistence of a FOIA when you could have just offered to show us the file. If we are not granted the ability to look at documents related to the proposed permit before the public comment period expires, then the public has not been granted a full opportunity to comment on all of the potential impacts of the project. In this electronic age, there is no reason that critical documents (including the permit application and mitigation plan) that can be released through a FOIA request should not be posted to a Corps public notice website along with the typical public notice issued by the Corps. Not only would this make the Corps more transparent, it would also reduce the administrative burden on the Corps by eliminating the staff time needed to process FOIA requests and the staff time to review and respond to questions or concerns in 8
public comment letters that could have been resolved if we had access to the proper permit documents. We recognize that creating a web portal for application documents would take some time, so in the meantime, we would appreciate access documents that are necessary for the public to make meaningful comment on permits. This would also be in accordance to President Obama s Memorandum for the Heads of Executive Departments and Agencies regarding the Freedom of Information Act. 6 In this memo, President Obama states The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The memo further states that the presumption of disclosure means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely. Sincerely, Scott Eustis, M.S. Coastal Wetland Specialist Gulf Restoration Network Marylee Orr Director LEAN Brianna Fairbanks Staff Attorney Sierra Club 6 http://www.whitehouse.gov/the-press-office/freedom-information-act 9
Paul Orr Riverkeeper Lower Mississippi Riverkeeper Thomas Smitty Smith Director Texas Office, Public Citizen cc: Thomas Holden, COE-NOE Mark Wingate, COE-NOD Troy Constance, COE-NOD Jennifer Burkett, COE-NOD Gina McCarthy, EPA Ron Curry, EPA Matt Tejada, EPA Attachments: Exhibit A RAM Terminal CFD Modeling Technical Memorandum, The Water Institute of the Gulf/Arcadis Exhibit B Memorandum of Agreement between State of Louisiana and RAM Terminals, LLC Regarding Operation of the Mid Barataria Sediment Diversion and RAM Terminal Project Exhibit C Letter, Environmental Protection Agency to Michael V. Farabee, May 9, 2012 Letter, National Marine Fisheries Service to Colonel Edward R. Fleming, May 14, 2012 Exhibit D - Diagram submitted by Lanier and Associates in support of MVN 2012 0123 / CUP 2012 0190 Exhibit E - Diagram submitted by Lanier and Associates in support of MVN 2013 2690/CUP 2013 1379 Exhibit F - LA DNR s SONRIS database, P CUP 2013 1379, accessed Feb 2014 10
Exhibit G Linkin Profile, Charles Wesley; Coal exporter, state detail pact on river diversion, The Advocate, August 20, 2013. Exhibit H Letter, Coastal Restoration and Protection Authority of Louisiana to RAM Terminals, LLC, April 30, 2012 11