ALBANY, N.Y. (CN) - Residents of a public housing complex want a judge's help in getting state officials to evaluate the health and safety risks of a plan to expand an oil-handling terminal at the nearby Port of Albany.
Tenants of the Ezra Prentice Homes claim the state Department of Environmental Conservation "failed to identify all areas of relevant concern, take a hard look at them, and provide a reasoned elaboration of the basis for its determination of non-significance," according to the complaint in Albany County Supreme Court.
A handful of environmental groups joined the lawsuit, worried about air pollution and how a spill could affect fish and other wildlife in the adjacent Hudson River.
Named as defendants are the Department of Environmental Conservation, and Global Cos. LLC, a subsidiary of Global Partners LP of Waltham, Mass.
Global has operated a terminal at the Port of Albany since 2007, where it annually receives more than 1 billion gallons of crude oil, gasoline and ethanol by rail from the upper Midwest and Canada. The products are stored in huge tanks before being distributed by barge and truck to East Coast refiners.
Last year, Global sought state approval to add seven boilers to handle heavy crude oil that must be heated in railcars before being transferred to storage tanks. In November, the Department of Environmental Conservation, or DEC, issued a so-called negative declaration on the request, meaning the project would have no significant environmental impact.
That decision was "fatally flawed in several respects," says lead plaintiff Charlene Benton, president of the Ezra Prentice Homes Tenants Association, including failing to involve residents in discussions on the likely health and safety impacts of the expansion.
The South End neighborhood where the apartment complex is located was identified by the DEC as an "environmental justice area." Under state law that means that care must be taken to involve residents of often-overlooked racial, ethnic and socioeconomic groups in deliberations that could affect them.
The 176-unit complex, owned by the Albany Housing Authority, is fully occupied; tenants number 430, including 280 children. According to the complaint, about half of the apartments are within 100 feet of the rail yard that serves Global's terminal, as is a playground used by children living in the complex.
Benton claims that in evaluating Global's proposed expansion, the DEC "either inadequately assessed or ignored entirely" the expected increased emissions of volatile organic compounds, such as benzene, "a known human carcinogen," and odiferous sulfur compounds, such as hydrogen sulfide, "which can be lethal in even small doses."
She claims the DEC also failed to consider the risk of spill, fire and explosion "posed by a train carrying Bakken crude and heavy crude/tar sands oil."
The complaint notes that Bakken, "a highly volatile form of crude oil," was in the tank cars that derailed in Lac-Megantic, Quebec, last summer, causing an explosion and fire that killed 47 people and wiped out about half the city's downtown.
Canadian tar sands oil is not as volatile as Bakken, "but is so heavy that it will sink if released over water," according to the complaint.
The shortnose and Atlantic sturgeon, two endangered species that spawn in the Hudson River near the Port of Albany, could be affected by a spill, the complaint states. So, too, could an active bald eagle nest a few miles north of the Global terminal.
Benton contends the DEC should have rescinded its no-impact finding on the Global expansion after "substantive new information" came to light on transporting Bakken and tar sands oil.
Earlier this year, Gov. Andrew Cuomo asked five state agencies, including the DEC, to evaluate how prepared New York was to respond to rail and water accidents involving petroleum products. The resulting "Crude Oil Report," Benton says, recognized that transporting tar sands oil on or near state waterways "'is a significant concern' that 'must be addressed.'"
With that finding, she says, the DEC had a "nondiscretionary duty" to rescind its negative declaration on Global's expansion.
"DEC has failed to perform a duty enjoined upon it by law," Benton claims.
The complaint asks the court to send the issue back to the DEC for a "positive declaration," which will require the preparation of a lengthy environmental impact statement by Global on the project.
Joining Benton in the complaint are Riverkeeper, Sierra Club Atlantic Chapter, the Center for Biological Diversity and Waterkeeper Alliance.
Representing the bulk of the plaintiffs is Christopher Amato with EarthJustice in Manhattan. Daniel Estrin of Pace Environmental Litigation Clinic in White Plains represents Riverkeeper and Waterkeeper Alliance.
DEC spokeswoman Emily DeSantis was out of the office on Friday and no one else from the agency returned a call seeking comment.
DeSantis told the Albany Times Union that the DEC and the plaintiffs had agreed to seek a stay to keep the complaint in limbo until a public comment period on the project closes in August.
According to information on the DEC website, the comment period was extended from April to June and now to Aug. 1 to create an "enhanced public participation process" to be sure that the project's adjacent "environmental justice area" is heard from.
The goal, according to a letter to Global posted on the website, is to "achieve the same level of public input as would have been achieved had the department implemented CP 29 [Commissioner Policy 29, the provision to ensure participation from an environmental justice area] before issuing the negative declaration of significance."
The letter, written in March by William Clarke, a DEC regional permit administrator, includes a long list of questions the agency wanted Global to answer. It called the agency's no-impact finding in November "an interim review."
In May, an attorney representing Global responded
with answers to the questions, and noted there was no such thing under state environmental law as "an interim review."
"This is mentioned solely to make clear that the rule of law, not political considerations, must prevail in this process and to avoid any ambiguity that the department's issuance of the November 2013 negative declaration was, without qualification, final and binding," wrote Dean Sommer of Young/Sommer in Albany.
Sommer also reminded the DEC that Global was seeking approval for modifications to its state-issued air permit for the new boilers. The DEC, he wrote, seemed "very focused on what could be considered collateral issues concerning the logistics of rail transportation of crude oil."
Such transport is governed by the U.S. Department of Transportation and the Federal Railroad Administration, he said.