State won't ban tankers

timesunion.com  |  October 21, 2014  |  By Brian Nearing

Albany

Opponents of crude oil trains at the Port of Albany claimed the state has the power to immediately ban the most common type of tanker cars — called DOT-111s — from entering the port loaded with flammable oil, according to a petition filed Tuesday with state Department of Environmental Conservation.

DEC disagreed, but such a step would make Albany the first place in the country to bar the aging tankers, which in derailments have been prone to rupture, leading to fires and explosions, said Chris Amato, a staff attorney with EarthJustice, a Washington, D.C.-based environmental legal group that filed the petition.

Gov. Andrew Cuomo has been deflecting calls for the state to block the trains, saying rail transportation is controlled by the federal government, not the state. This petition challenges Cuomo's stance, claiming DEC Commissioner Joe Martens can act without infringing on federal authority through a legal authority called summary abatement, which is meant to address imminent danger to life, health or the environment.

"It would be groundbreaking ... It is time for the Cuomo administration to stop waiting for the federal government to come to the rescue," said Amato, who was DEC deputy commissioner for natural resources from 2007 to 2011. The petition was unveiled at a news conference in front of DEC headquarters on Broadway.

Amid growing safety concerns after a spate of oil-laden DOT-111 derailments, explosions and fires — including a blast in Quebec that killed 47 people — federal officials are considering phasing out DOT-111s from hauling crude oil, but that could take until 2020. "The people of Albany cannot wait six years to be safe," said Amato's petition.

Crude oil from the Bakken fields of North Dakota is being hauled by trains to Albany and other coastal ports using a fleet of some 92,000 DOT-111 tanker cars. The shipping industry is switching over to armored, sturdier cars, a process that could take years, and older models still account for two-thirds of the current fleet.

DEC disputed Amato's claim that the state can act against the tankers, issuing a statement that federal officials have "exclusive authority to regulate the transport of crude oil by rail, which absolutely prohibits the DEC commissioner from regulating rail transport through a summary abatement order."

Cuomo has "repeatedly called upon environmental groups to join New York state in its efforts to urge the federal government to take immediate and responsible action ... We still welcome them to join us," the statement said.

The EarthJustice petition asked Martens to use summary abatement power on the grounds that DOT-111s at the port constitute an "imminent danger' to public health and safety, and are likely to cause "irreparable" environmental damage.

Amato said past DEC commissioners' use of summary abatement authority has been upheld by federal courts, and had been used in cases involving transporting oil and sludge in barges on the Hudson River some two decades ago, as well as "fire hazards posed by a waste tire storage facility (and) discharge of petroleum from a petroleum bulk storage facility."

Martens has never used summary abatement, and DEC is under no obligation to even respond to the petition, said Amato.

The petition was filed on behalf of Ezra Prentice Homes Tenants Association, a public housing project on South Pearl Street where oil tankers are routinely parked, as well as Sierra Club Atlantic Chapter, Center for Biological Diversity, People of Albany United for Safe Energy, Natural Resources Defense Council, Environmental Advocates of New York, and Adirondack Wild: Friends of the Forest Preserve.

It also included Greater St. John's Church of God in Christ, an African-American church close to the port at which about 150 people attend services.

"Everything is being pushed over until after the election," said the Rev. McKinley Johnson, who has called surging crude oil shipments to the port in the predominantly minority South End an example of environmental racism. "We are important. People are important; more important than money."

bnearing@timesunion.com518-454-5094@Bnearing10

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commented 2014-10-26 19:05:35 -0400 · Flag
Thank you, David, for this clarification. It’s not about TRANSPORT. Rather, the receipt of storage of the Bakken – especially in the DOT 111’s- within the port due to imminent hazard. We need everyone in Albany to understand Commissioner Martens has this authority b/c he and Cuomo will continue to deflect until the public overwhelmingly puts it in their faces.
commented 2014-10-23 00:12:31 -0400 · Flag
[DEC disputed Amato’s claim that the state can act against the tankers, issuing a statement that federal officials have “exclusive authority to regulate the transport of crude oil by rail, which absolutely prohibits the DEC commissioner from regulating rail transport through a summary abatement order.”]

What a dodge with a misleading response. No one said regulate transport of crude oil by rail… No one said “transport” at all.

Summary Abatement pertains to the permitting of the Bulk Storage Facility/Major Oil Storage Facility (which DEC does have authority to regulate).

As a result from Summary Abatement, if the Title V Air Permit is Suspended or Revoked, operation (transloading of crude oil) at that facility would be a willful action (potentially criminal) in direct violation of the Federal Title V Air Permit Program with tens of thousands of dollars in fines daily per rail car/barge/storage tank that is involved in the release of Hazardous Air Pollutants or Criteria Contaminants to the atmosphere. To help remind those that should know…

N.Y. ENV. LAW § 71-2105 : NY Code – Section 71-2105: Criminal liability for violations

1. Except as provided in section 71-2113, any person who shall wilfully violate any of the provisions of article 19 or any code, rule or regulation promulgated pursuant thereto or any final determination or order of the commissioner made pursuant to article 19 shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine, in the case of a first conviction, of not less than three hundred seventy-five dollars nor more than fifteen thousand dollars or by imprisonment for a term of not more than one year, or by both such fine and imprisonment, for each separate violation. If the conviction is for an offense committed after the first conviction of such person under this subdivision, such person shall be punished by a fine not to exceed twenty-two thousand five hundred dollars, or by imprisonment, or by both such fine and imprisonment. Each day on which such violation occurs shall constitute a separate violation. 2. No prosecution under this section shall be instituted until after final disposition of an appeal or review, if any, provided by section 19-0511. 3. All prosecutions under this section shall be instituted by the commissioner and shall be conducted by the Attorney General in the name of the people of the state of New York. 4. In the prosecution of any criminal proceeding under this section by the Attorney General and, in any proceeding before a grand jury in connection therewith, the Attorney General shall exercise all the powers and perform all the duties which the District Attorney would otherwise be authorized or required to exercise or perform, and in such a proceeding the District Attorney shall exercise such powers and perform such duties as are requested of him by the Attorney General,

That’s up to $15,000 AND up to 1 year in JAIL for EACH single, separate violation.
PAUSE, People of Albany United for Safe Energy
PAUSE is a grassroots group of individuals who have come together to promote safe, sustainable energy and fight for environmental justice. We engage the greater public to stop the fossil fuel industry’s assault on the people of Albany and our environment.