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112 S TATE S TREET , R OOM 900

A LBANY , N EW Y ORK 12207-2021
(518) 447-7040 - FAX (518) 447-5589

November 28, 2014

The Honorable Joseph P. Martens

By email to
New York State Department of Environmental Conservation
625 Broadway
Albany, NY 12233-1011


Comments on Global Petroleum Air Title V Facility Permit Modification,

and Request for Comprehensive EIS under SEQR

Dear Commissioner Martens:

I commend Governor Cuomo and your Department for recognizing the recent,
monumental increase in North American rail transport of crude oil using deficient tank cars and
operational controls corresponds to a drastic increase in terrible accidents and greatly increased
risks to life, property and the environment, and for the Governors issuance of Executive Order
125 and follow-on efforts by the Governor and your Department to use your authorities to reduce
those accidents and their severity.
To be sure, we also deplore that up to this year, your Department approved dramatic
increases in the amount of petroleum being handled at terminals in Albany County with much
too little public deliberation. Albany County has become an epicenter of the explosive growth of
transporting crude oil by rail. Major petroleum storage, rail and port facilities, including
facilities of Global Petroleum, LLC, and Buckeye Partners, are located immediately adjacent to
downtown Albany and public housing. The Northeasts largest freight car yard, the CSX Selkirk
Yard, is located in the County. All of these facilities, including the shipping operations at the
Port of Albany, are slated for so much growth that Albany is under consideration to become a
crude oil pricing hub.1

Albany Nears Oil-Hub Status as 100-Car Trains Jam Port, , July 24, 2014; Albany on
oils hub list, , April 8, 2014.

As County Executive, I have responsibility for assuring that there are sufficient
protections and preparations to handle the risks and consequences of the crude oil expansion in
the County. We have already taken some actions, including:

A County Department of Health order (March, 2014) establishing a County-wide

moratorium on certain operations involving crude oil;

Appointment of experts to an advisory Committee on Crude Oil Safety to help the

County evaluate and participate in resolving the unprecedented issues posed by
transport, handling and storage of massive amounts of crude oil in the County;

Preparation of the Countys attached comments on Global Petroleums requested

modification to its air Title V permit.

The Countys responsibilities to protect the Countys people, property and environment,
however, are not matched by the authority or resources to regulate safe storage, handling and
transportation of crude oil and other hazardous materials in the County. In fact the Countys
authority is confined by federal pre-emption, and the federal agencies and your Department, not
the County or municipalities, set most of the conditions on crude oil storage and handling in the
By this letter, I request that you recognize that the vast expansion of crude oil transport
and handling in Albany County - proximate to an urban core and housing and still subject to
inadequate standards - presents unprecedented, unresolved issues that are particular and unique
to the County and that compel exercise of your authority and responsibility not to authorize
additional expansion within Albany County until those issues are fully addressed through an
adequate public process.
We appreciate that the enhanced tank car standards and other improvements the federal
government, the Department, the railroad companies and others are considering may, in time,
somewhat reduce the risks of accidents and adverse consequences in Albany County. Yet
finalizing, litigating, and fully implementing those improvements will take at least several years,
perhaps longer than the boom in crude oil by rail will last. Meanwhile the risks are real now,
and extreme and increasing.
So we ask you not to authorize any permit modifications to Global Petroleums or other
crude oil handling facilities in Albany County - if a requested modification would have the effect
of facilitating increased quantities of crude oil or new types of crude oil presenting new or
increased risks - until the Department requires an environmental impact study under SEQR that
addresses the full set of issues and risks of further increases. That study should consider
projected growth of crude oil handling throughout the County so that the cumulative risks and
impacts can be identified and mitigated before the increases occur.

The attached comments provide detailed support and suggestions for the review that is
necessary under SEQR. We look forward to hearing from you.

Very truly yours,

Daniel P. McCoy
Albany County Executive

Gov. Cuomo
Sen. Gillibrand
Sen. Schumer
Rep. Tonko

Comments of Albany County, NY on Application of Global Petroleum, LLP
For Air Title V Facility Permit Modification, and Request for EIS under SEQR,
November 30, 2014






112 S TATE S TREET , R OOM 900

A LBANY , N EW Y ORK 12207-2021
(518) 447-7040 - FAX (518) 447-5589

Comments of Albany County, NY

Application of Global Petroleum, LLP
Air Title V Facility Permit Modification

Request for EIS under SEQR

November 30, 2014

Albany County, NY provides these comments on Global Petroleums application for an

air Title V permit modification because the County has recently become an epicenter of the
explosive growth of transporting crude oil by rail, and because that is occurring in tank cars that
present an imminent hazard to life, property and the environment.
First, the County provides a brief description of its uniquely concerning circumstances.
Then the County comments on Globals proposed modification by showing why it should not be
considered until the New York State Department of Environmental Conservation (NYSDEC or
the Department) requires preparation of a comprehensive environmental impact statement
(EIS) pursuant to the New York State Environmental Quality Review Act (SEQR).
A. Albany County and Crude-by-Rail
The County comprises 19 municipalities on the western side of the Hudson River,
approximately 150 miles north of New York City. The US Census Bureau estimates the
Countys 2013 population as 306,945 and the 2013 population of the City of Albany as 98,424.
The County contains very substantial rail and port facilities for movement of freight. As
illustrated on Figures 1 and 2, the principal components include:

A cross-County main line owned by Canadian-Pacific (CP) running north-south along

the Hudson River and through the downtowns of the Cities of Albany, Cohoes and
Watervliet and several river towns and villages;
A cross-County main line owned by CSX running west-east to the south of Albany;
The CSX Selkirk Yard in Selkirk, about 8 miles south of the City of Albany, the
largest freight car yard in the northeastern United States;
The Global Petroleum and Buckeye Partners petroleum terminals located on the
Hudson River in downtown Albany, with associated rail lines and the Kenwood Yard;
The West Albany Yard in the City of Albany; and
The freight transfer and shipping facilities of the Port of Albany, located on the
Hudson River in downtown Albany, which is the northernmost point on the Hudson
River accessible by bulk petroleum freighters and barges.

These facilities are proximate to many dense residential or commercial zones, particularly
in the three cities and the river towns. For example, the CP freight lines serving the Global
Petroleum and Buckeye terminals immediately abut the Ezra Prentice Homes, a public housing
complex in Albany. That housing complex regularly experiences odors, noise and emissions
from the nearby tracks and terminals. Indeed, all of the petroleum terminal facilities in
downtown Albany are proximate to the commercial core of the City.
These rail freight facilities also are proximate to many other sensitive resources. For
example in the Town of Guilderland, the CSX line traverses the watershed and borders one side
of the Watervliet Reservoir, the source of drinking water for Watervliet and Guilderland.
The County shares in the heavy responsibilities of federal, state and local regulators to
assure that the operation of these rail and port facilities does not pose undue risks to the Countys
population, property and resources. The County Executive, the County Health Department, and
the County Sheriff all have duties and authorities to assure that there are adequate controls and
standards for the prevention of dangerous accidents within the County, adequate resources and
plans for responses to fires, spills, explosions or other incidents, and adequate implementation if
an incident occurs. For example, pursuant to the Countys Comprehensive Emergency
Management Plan, the County Sheriff has the principal responsibility for directing and
coordinating County and municipal forces when mutual assistance is needed among the federal,

states and municipalities. Likewise, the County Health Department has duties and authorities
for coordinating any necessary public health responses to an incident.
With those responsibilities, the County is justifiably alarmed by the dramatic growth of
moving crude oil by rail within the County within dangerously inadequate rail cars under
inadequate operating requirements. The U.S. Department of Transportation (USDOT) and the
National Transportation Safety Board (NTSB) have documented those inadequacies, so these
comments need not recount the litany of resulting tragedies in the U.S. and Canada. See
generally USDOTs recent Notice of Proposed Rulemaking (NPRM), 79 Fed. Reg. 45016
(August 1, 2014), which proposes enhanced tank car standards but would not be fully
implemented until at least 2020.
The risks of the existing fleet of DOT-111 tank cars are so severe that in May 2014 the
USDOT determined that using them for transport of crude oil from the Bakken region presents
an imminent hazard. Emergency Restriction/Prohibition Order DOT-OST-2014-0067, 79 F.R.
27363 (May 7, 2014). The Hazardous Materials Transportation Act, 49 U.S.C. 5102(5),
defines an imminent hazard as a condition that presents a substantial likelihood that death, severe
personal injury, or a substantial endangerment to health, property, or the environment. Crude oil
from the Bakken region is the main form of crude coursing through Albany County in those tank
cars and exposing its residents, property and resources to those conditions of imminent hazard.
Governor Cuomo also has recognized these hazards, which triggered his issuance of
Executive Order #125 on January 8, 2014 and the preparation by NYSDEC and other state
agencies of the report Transporting Crude Oil in New York State, A Review of Incident
Prevention and Response Capacity, dated April 30, 2014. The County appreciates the
recommendations in that report, including the States efforts to enhance the States own railroad
track inspections and to press the federal government to hasten stronger regulations and
emergency planning and response capacities.
Nevertheless, the imminent hazard found by the USDOT remains. Also, the County
notes that the States report certainly did not recommend that the State facilitate an expansion of
the crude-by-rail activities in the State.
The purpose of these comments is to focus the Department on how those crude-by-rail
inadequacies pose unacceptable, imminent hazards to the population, property and resources of
Albany County.
Specifically, for as long as the USDOT allows transport of crude oil and ethanol through
Albany County in dangerous rail cars, any accident is highly likely to cause grievous harm. The
likely harms of rail accidents involving crude oil include fire, damage to life and property, and
spills to water resources including drinking water. The risk of accidents has been dramatically
compounded by the enormous volumes of crude-by-rail occurring in the County now and
expected to increase.2 The emergency orders the USDOT issued in 2013 and 2014 may lessen
the risk of accidents or harm from accidents, but that marginal improvement is dwarfed by the
increase in the number of tank cars coming through the County or being off-loaded in Albany.
Similarly, the USDOTs NPRM may bring some reduction in risk by gradually
retrofitting the existing fleet of tanker cars and setting higher standards for new tank cars. Yet
the implementation of those efforts will take years and, so far, are not focused on local concerns.
Meanwhile Albany County faces unacceptable risks now and for at least several more years.

Albany Nears Oil-Hub Status as 100-Car Trains Jam Port, , July 24, 2014; Albany on
oils hub list, , April 8, 2014.

Thus in the next section, the County comments on Globals application that NYSDEC
must defer acting on Globals application pending an EIS to evaluate the environmental impacts
engendered by the requested action in the context of the overall growth in crude-by-rail activities
in Albany County. An EIS will provide the basis for the Department to allow the application
only with conditions assuring there are appropriate controls on crude-by-rail operations in
Albany County.
B. Comments on Globals Application
Globals Requested Modification
Globals operations in Albany include the Kenwood Yard and a petroleum terminal
located on the Hudson River. Globals existing suite of permits include an NYSDEC air Title V
operating permit that limits its emissions of volatile organic compounds (VOCs) and other air
pollutants, as well as permits authorizing it to process millions of gallons of crude oil and other
petroleum-based products. Serial authorizations for Global to increase the amount of products
processed at the terminal were granted incrementally by the Department just in the last few years
as Global expanded in response to the national boom in crude oil production and rail transport.
To date, however, the Department has not required Global, Buckeye or the Port of
Albany to provide an EIS under SEQR even as their crude oil operations have vastly expanded in
the aggregate.
The Countys understanding is that Global filed its pending application to modify its air
title V operating permit in 2013 in order to allow Global to handle crude oil coming to Albany
from the tar sands region of Canada. Tar sands crude is less viscous than the crude oil from the
Bakken region of North Dakota (the source of most of Globals recent growth in crude-by-rail
activities in Albany). To be able to handle the tar sands crude, Global proposes to generate
steam to inject into tank cars stationed at its terminal so as to heat the crude to allow it to be
pumped as a heated petroleum product and transferred to its tanks or vessels coming to the Port
of Albany. The application also seeks approval for conversion of some existing storage tanks to
facilitate the change in business plans.
According to Global, its mix of petroleum products would change, but approval of the
modification will not involve an increase in authorized potential air emissions or in the
authorized amount of petroleum-based products handled at its Albany facilities. It is not clear
whether Globals actual emissions or throughput would increase over its current operations.
1. The Department Should Rescind the SEQR Negative Declaration and
Require an EIS.
Under SEQR and its implementing regulations promulgated by the Department,
the Department is the lead agency responsible for considering Globals
application for a permit modification. Before determining whether to approve the
application, SEQR requires the Department to determine whether that action may
have a significant impact on the environment and, if it may have a significant
adverse impact, the Department must prepare or request an EIS. 6 NYCRR 617.1.
On November 21, 2013 an official in the Departments Region 4 issued a
determination (the Negative Declaration) that approval of Globals application
would not involve any adverse significant impacts on the environment and no EIS
was needed.

That determination was a mistake. Global intends that approval of the application
would lead to a major shift towards handling tar sands crude in Albany. Standing
by itself, that shift may involve significant adverse environmental consequences
to the environment were tar sands crude oil spills to occur in transit within Albany
County or at Globals terminal or the Port of Albany. But considered in the
context of the vast past and expected growth in the state and Albany County of
crude-by-rail using unsafe tank cars, as documented by the states Transporting
Crude Oil report and by the USDOT in its NPRM and emergency orders,
authorizing a modification that allows an increase in handling tar sands crude oil t
Globals facility in Albany even more clearly may have significant, adverse
environmental impacts.
The Department has received widespread criticism of the Negative Declaration.
Its responses do not include requiring an EIS. Instead, the Department has
attempted to backfill for the absence of an EIS by:

evaluating ambient air quality in South Albany near the petroleum

operations at the Global facilities and CP rail lines;
increasing inspections of the Global facilities;
seeking additional information from Global;
requiring Global to implement a public participation plan; and
repeatedly extending the public comment period on the pending

This backfilling shows implicitly that the Department recognizes that Globals
increased handling of tar sands crude may have environmental impacts that are
significant and adverse. But it does not come close to providing an EIS under
SEQR because the Department has not assessed the cumulative impacts of crudeby-rail as SEQR requires and as outlined in the next comment.
Even were an EIS not mandatory (as it is), the Department has the discretion to
require an EIS before proceeding to authorize Global to modify its facilities to
accommodate tar sands crude. The Department can and should require an EIS
even if one is not mandatory.
Globals preference plainly is to obtain the Departments approval without having
to prepare an EIS. The Departments preference, however, should run towards a
full assessment of the environmental consequences of an approval.

2. The EIS Should Address Cumulative Impacts.

Globals application, if approved, would allow Global to handle large quantities
of a new category of crude oil in different ways than in the past, which is
sufficient to warrant an EIS for the reasons provided in Comment 1. The scope of
that EIS, however, must not focus narrowly on the proposed change in air
emissions or the increase in handling tar sands crude. Rather, it should broadly
assess the cumulative impacts of the recent growth in crude-by-rail operations in
Albany County.
The Departments own mandates under SEQR explain the applicable standards.
NYSDECs SEQR Handbook (3rd Edition 2010) instructs lead agencies to
assess cumulative impacts if proposed or likely actions foreseeably may combine

simultaneously or sequentially in a way that combined impacts may be significant

to the same resources. Cumulative impacts do not have to be associated with one
applicant, and include indirect or secondary impacts, long term impacts and
synergistic effects. The impacts of unrelated, incremental actions become
significant where the impacts are to a specific resource. SEQR Handbook, pp. 8385.
The particular changes proposed by Global to its air Title V permit may be
incremental. They are preceded and foreseeably followed, however, by actions by
Global and others that cumulatively may have very significant, adverse impacts
on the Hudson River and the people and built environment of Albany County.
Globals application presents the archetypical circumstance where cumulative
impacts should be assessed in an EIS before the Department takes action on the
Globals application provides the opportunity and duty for the Department to
require a broad assessment of the impacts of turning Albany into a global hub for
crude oil, now and before the Department approves more unexamined growth.
3. The EIS is Necessary Even if Globals Authorized Air Emissions and
Throughput Would Not Increase.
Global and others emphasize that this application does not request an increase in
authorized throughput of petroleum products or emissions of air pollutants.
Approval of the application, however, involves impacts beyond those directly
authorized by the Department. Actual emissions may increase even if the cap on
emissions does not. Spills or fires at Global or the Port or from the trains making
deliveries to Global may not be authorized, but they are foreseeable consequences
associated with any petroleum terminals. The Departments approval of the
application indirectly would authorize Global to handle a type of crude oil having
very different characteristics than Global has handled until now. It is well within
the Departments authority and duties under SEQR to evaluate the full set of
impacts of that change in Globals overall operations.
Also, petroleum terminals may cause noisome odors and emissions with
significant impacts on the quality of life or health of neighbors even while in
compliance with air emission permits. The County urges the Department to
consider the recent concerns about the new oil-by-rail terminal built by Irving Oil
in New Brunswick. The Provincial authorities permitted the terminal in reliance
on Irvings statements that new odors and emissions would not increase, but once
in operation, the overpowering odors and increased VOCs dramatically impacted
the nearby community.3 Those foreseeable impacts, not just the directly
authorized emissions, are among those the Department must consider under
Similarly, the Departments round of ambient air testing in South Albany does not
erase the need for an EIS. That testing was too limited in duration and scope. An
EIS that considers the foreseeable impacts of the continuing crude-by-rail boom
in Albany is the only sound basis for evaluating the impacts of this particular,
incremental change.

Reuters Exclusive: Air quality problems dog Irvings New Brunswick oil-by-rail terminal, August 28, 2014, at

4. The EIS Must Address Public Safety and Mitigation of Risk.

The crude-by-rail boom indisputably has increased risks to the population,
property and natural resources of the U.S. and the State of New York, as
recognized by the USDOT, the Governor, and others as described earlier. Some
of the safety rules are set by federal agencies, which also control what rail tank
cars are permitted to carry crude oil and other flammables.
It is the Department, however, which has the authority to determine whether to
approve Globals pending application and thereby indirectly to authorize the
handling of tar sands crude in Albany County.
It is the Department which has the authority to make that determination with or
without an EIS under SEQR.
It is the Department which has the authority to make that determination with or
without an assessment of whether the new crude-by-rail activities at Global and
on the rail lines are accompanied by adequate protections against accidents, spills
and adequate response capacities.
Governments most basic job is to protect public health and safety. The
Department should not make a decision on Globals application prior to reviewing
an EIS that directly addresses the public safety issues triggered by Globals
planned operations and by the related current and foreseeable growth in the
amount of crude by rail coursing through Albany County.
The Department should not approve the requested modification until it
determines, based on an EIS, that the change in Globals operations would not
pose unacceptable risks to public safety and that appropriate mitigation measures
are in place to reduce those risks.