Case 1:16-cv-00125-GLS-CFH Document 26 Filed 08/23/16 Page 1 of 8

August 23, 2016

Hon. Gary L. Sharpe
United States District Judge
U.S. District Court for the Northern District of New York
James T. Foley United States Courthouse
445 Broadway
Albany, NY 12207
RE:

Benton et al. v. Global Companies, LLC

Case No. 1:16-CV-125 (GLS/CFH)

Dear Judge Sharpe:

We represent Plaintiffs in the above-captioned citizen suit brought pursuant to the federal
Clean Air Act (CAA), 42 U.S.C. 7401-7671q. As Your Honor is aware, there is currently
pending before the Court a motion by Defendant Global Companies, LLC (Global) to dismiss
the Complaint. We write inform the Court of a recent significant development that directly bears
on Globals motion.
Specifically, by letter dated July 29, 2016 (a copy of which was received by Plaintiffs on
August 17, 2016), the U.S. Environmental Protection Agency (EPA) issued a Notice of
Violation (NOV) to Global for (i) failing to apply for and obtain a CAA Nonattainment New
Source Review (NNSR) permit when it undertook a major modification of its Albany, New
York crude oil terminal (Albany Terminal) in 2012, and (ii) operating the Albany Terminal
since 2012 without complying with Lowest Achievable Emission Rate (LAER) and emission
offset requirements. A copy of the EPA cover letter and NOV is annexed hereto as Exhibit A.
Because the EPA NOV specifically relates to, and supports, the CAA violations alleged
in two of the three causes of action in the Complaint, we respectfully submit the NOV for the
Courts consideration in the context of Globals motion to dismiss.

NORTHEAST48WALLSTREET,19THFLOORNEWYORK,NY10005

T:212.845.7376F:212.918.1556NEOFFICE@EARTHJUSTICE.ORGWWW.EARTHJUSTICE.ORG

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Procedural Background
By letter dated October 5, 2015, Plaintiffs provided written notification to Global that it
was in violation of the CAA and that Plaintiffs intended to file suit in federal court under the
CAAs citizens suit provisions if the violations were not corrected within sixty days (Notice of
Intent). See Letter from Christopher Amato et al., Earthjustice to Eric Slifka, President and
CEO, and Darrell Boehlke, Albany Terminal Mgr., Global Companies (Oct. 5, 2015) (Notice of
Intent) (attached as Exhibit A to Declaration of Moneen Nasmith, Esq., dated March 21, 2016
(Nasmith Decl.), submitted in opposition to Globals motion to dismiss the Complaint).
Specifically, the Notice of Intent informed Global that it was in violation of the CAA and
New Yorks State Implementation Plan (SIP) by (i) failing to apply for and obtain an NNSR
permit when it undertook a major modification of its Albany Terminal in November 2012; (ii)
failing to implement Lowest Achievable Emission Rate (LAER) technology to control
emissions of volatile organic compounds (VOCs) from the Albany Terminal and failing to
obtain offsets for its VOC emissions following its 2012 major modification; and (iii) failing to
comply with the terms and conditions of its CAA Title V permit by receiving, storing, handling,
and marine loading Bakken crude oil, which has higher VOC emissions than the conventional
crude oil that Global claimed it would be handling at the Albany Terminal. Id. at 612; see also
Complaint for Declaratory and Injunctive Relief 16. Simultaneous with service on Global of
the Notice of Intent, a copy of the Notice of Intent was served on the EPA Administrator and the
EPA Regional Administrator for EPA Region 2. Notice of Intent at 13; Complaint 16. .
Global failed to either correct the violations identified in the Notice of Intent or otherwise
respond to the Notice. Accordingly, Plaintiffs commenced this action on February 3, 2016. The

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Complaint alleges three causes of action: (i) the First Cause of Action claims that Global violated
the CAA and New Yorks SIP by constructing a major modification of a major source of VOCs
without applying for and obtaining an NNSR permit, Complaint 7679;

(ii) the Second

Cause of Action alleges that Global violated the CAA and New Yorks SIP by operating a major
modified source of VOCs without implementing LAER and obtaining VOC emission offsets, id.
8083; and (iii) the Third Cause of Action claims that Global has violated its Title V permit
by receiving, storing, handling and marine loading Bakken crude oil at its Albany Terminal, id.
8488.
On February 26, 2016, Global moved to dismiss the Complaint pursuant to Fed. R. Civ.
P. 12(b)(1) and 12(b)(6), claiming that the Court lacks subject matter over all three causes of
action, and that the Third Cause of Action fails to state a claim. Specifically, with respect to the
First and Second Causes of Action, Global claims that the Court lacks subject matter jurisdiction
because those claims constitute an impermissible collateral attack on Globals Title V permit.
See Globals Memorandum of Law in Support of Motion to Dismiss Plaintiffs Complaint
(Global Mem.) at 1016.
Plaintiffs filed their opposition to the motion on March 21, 2016, and Global filed its
reply papers on March 28, 2016. The parties were subsequently notified that the motion would
be taken on submission with no oral argument.
By letter dated April 6, 2016, Global requested that all discovery be stayed pending a
determination of the motion to dismiss. The request was granted by Magistrate Judge Christian
F. Hummel by Order dated April 6, 2016.

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The EPA NOV

The EPA NOV includes Findings of Fact that are directly relevant to Plaintiffs claims.
EPAs Findings of Fact are based on an investigation conducted by its Region 2 office; Globals
certified responses to information requests that EPA Region 2 sent to Global following the filing
of the Complaint; and documents in the possession of the New York State Department of
Environmental Conservation (NYSDEC). Ex. A 32.
Among the Findings of Fact set forth in the EPA NOV that closely track allegations in
the Complaint and the Notice of Intent are the following:

(i)

Since at least 2011, the Albany Terminal has been a major stationary

source because its potential to emit VOCs is greater than 50 tons per year (tpy).
Ex. A 46; Complaint 51.
(ii)

In November 2011, Global submitted an application to NYSDEC seeking

to increase crude oil throughput at its Albany Terminal from 450 million gallons
to 1.85 billion gallons annually.1 Ex. A 47; Complaint 54.
(iii)

Globals application claimed, without explanation or verification, that

there would be zero VOC emissions from crude oil storage tanks at the Albany
Terminal. Ex. A 52, 5758; Notice of Intent at 10.
(iv)

Globals application failed to identify the sources of fugitive emissions of

VOCs. Ex. A 50, 55; Notice of Intent. at 10.

The EPA NOV refers to an increase in crude oil throughput to 1.85 billion gallons annually,
while the Complaint refers to an increase in total petroleum product throughput (which includes
products other than crude oil) of 2.3 billion gallons annually.

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(v)

Globals application assumed an uncontrolled emission factor for VOCs of

1.3590 pounds of VOCs per 1,000 gallons during marine loading of crude oil. Ex.
A 61; Complaint 72.
(vi)

Global significantly underestimated the uncontrolled emission factor for

VOCs during marine loading of crude oil. Ex. A 7778; Complaint 9-10, 7279.
(vii)

The net emission increase in VOCs from the 2012 major modification to

the Albany Terminal exceeded 40 tpy, and the modification was therefore subject
to NNSR requirements. Ex. A 7980; Complaint 910, 7279.
(viii) Global has failed to implement LAER and obtain VOC emission offsets.
Ex. A 81; Complaint 80-83.
(ix)

Globals violations of the CAA and New Yorks SIP are ongoing. Ex. A

37, 91; Complaint 12, 8283.

The Conclusions of Law set forth in the EPA NOV also closely track the claims in the
First and Second Causes of Action in the Complaint, including that:
(i)

Global has violated the CAA and New Yorks SIP by failing to apply for

and obtain an NNSR permit when it undertook the 2012 major modification to the
Albany Terminal allowing it to increase annual crude oil throughput at the
Terminal from 450 million gallons to 1.85 billion gallons. Ex. A 8287, 90
91, 9496; Complaint 7679.
(ii)

Global violated the CAA and New Yorks SIP by operating the Albany

Terminal following the 2012 major modification without implementing LAER

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and obtaining VOC emission offsets. Ex. A 8287, 9294; Complaint 80

83.
The EPA NOV underscores the fallacy of Globals argument that Plaintiffs First and
Second Causes of Action constitute an impermissible collateral attack on Globals Title V
permit. Global Mem. at 1016. As the EPA NOV notes, Globals obligation under the CAA and
New York SIP to obtain an NNSR permit and to comply with LAER and offset requirements is
separate and distinct from its Title V permit obligations. See Ex. A 18 (The New York SIP
includes . . . New Source Review (NSR) for New and Modified Facilities, which includes
requirements pertaining to contents of applications and criteria for obtaining NSR permits in
nonattainment areas as required by Sections 172(c)(5) and 173 of the CAA . . . .). As pointed
out in Plaintiffs brief in opposition to Globals motion, New Yorks NNSR permitting
requirements make clear that the Title V operating permit requirements are separate and distinct
from the NNSR preconstruction permit requirements. Plaintiffs Memorandum of Law in
Opposition to Globals Motion to Dismiss (Pl. Mem.) at 13 (citing 6 NYCRR 231-3.4); see
also Complaint 4041. Thus, like the EPA NOV, Plaintiffs First and Second Causes of
Action seek to enforce independent, non-Title V permit requirements, and do not constitute a
collateral attack on Globals Title V permit.
Moreover, contrary to Globals argument, the Title V permit program was not intended
to, and does not, provide blanket immunity to a source owner who fails to comply with permit
requirements imposed by other sections of the CAA or a SIP. See Pl. Mem. at 815. Indeed,
taken to its logical conclusion, Globals collateral attack argument would also preclude EPAs
pending enforcement action against Global for its failure to obtain the required preconstruction
NNSR permit and comply with required pollution controls. Thus, adopting Globals Title V

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immunity argument would not only fly in the face of Second Circuit precedent, see id. at 811,
but would also foreclose any attempt by either citizens or regulatory agencies to ensure
compliance with non-Title V CAA requirements.
It bears emphasis that the CAA permitting and pollution control mandates are not simply
technological requirements, but are designed for the sole purpose of protecting public health and
welfare. Complaint 2832. In particular, the NNSR requirements are intended to maintain
progress toward attaining the health-based National Ambient Air Quality Standards (NAAQS)
in areas, like Albanys South End, that have not yet attained the NAAQS for a given pollutant.
Id. 36, 3239, 4749. The pollutants at issue in this case, VOCs, are known to cause a
variety of adverse health effects in humans, including breathing constriction and lung damage in
healthy individuals; aggravation of respiratory diseases such as asthma, emphysema, and bronchitis;
permanent scarring of lung tissue; cardiovascular disease; and premature death. Id. 2, 30. In
addition, benzene, one of the VOCs emitted by crude oil operations at the Albany Terminal, is a
known human carcinogen. Id. 53. Thus, Globals failure to comply with CAA and New York SIP
requirements jeopardizes the health of the neighboring environmental justice community, many of
whom live directly adjacent to the Albany Terminal. Id. 24, 12, 17, 4753.
For all of the foregoing reasons, as well as those set forth in Plaintiffs opposing papers,
Globals motion to dismiss the Complaint should be denied in its entirety.

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Respectfully submitted,

Christopher Amato
Staff Attorney

C:

Dean S. Sommer, Esq.

Jeffrey Baker, Esq.
Young Sommer LLC
Executive Woods, Five Palisades Drive
Albany, NY 12205