EFTA00353302.pdf

From: Lesley Groff < To: Bebe Aydin Subject: Re: TFL Application Date: Wed, 04 Feb 2015 14:43:50 +0000 will do! On Feb 4, 2015, at 9:42 AM, Bebe Avdiu > wrote: Print this email chain out please. Thanks Les! Bebe Avdiu Legal Assistant DARREN K. INDYKE, 11.1.0 575 Lexington Avenue, 4th Floor ***** **** ***** ***** ***** **** ***** ******************************************************* The information contained in this communication is confidential, may be attorney-client privileged, and is intended only for the use of the addressee. It is the property of Darren K. Indyke, PLLC. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. If you have received this communication in error, please notify us immediately by return e-mail, and destroy this communication and all copies thereof, including all attachments. Copyright of Darren K. Indyke, PLLC - © 2014 Darren K. Indyke, PLLC—All rights reserved. *********************************• ****• ****• ****• *********• ****• ****• ***• • ***• • ***• ****• ****• ** On Feb 3, 2015, at 1:14 PM, Darren Indyke < > wrote: Remind me to bring this to JE tomorrow when I meet with him. Print it out and give to me first thing in the AM. Also, get a check ready from Bella so I can go to the bank tomorrow to get cash. Thanks. DARREN K. INDYKE DARREN K. INDYKE, PLLC 575 Lexington Avenue, 4th Floor New York. New York 10022 email: **►►seas********** *** ***** ***** ***** ************** ***** * **seas* The information contained in this communication is confidential, may be attorney-client privileged, and is intended only for the use of the addressee. It is the property of Darren K. Indyke, PLLC. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. If you have received this EFTA00353302 communication in error, please notify us immediately by return e-mail, and destroy this communication and all copies thereof. including all attachments. Copyright of Darren K. Indyke, PLLC - Cr' 2014 Darren K. Indyke, PLLC — All rights reserved. *****************************************•*** ••********•************************•****•********* Begin forwarded message: From: Cecile de Jongh Subject: Fw: TFL Application Date: February 3, 2015 at 1:00:21 PM EST To: Darren Indyke < Reply-To: Cecile de Jongh < No. With warm regards, Cecile On Tuesday, February 3, 2015 1:57 PM, Darren Indyke •> wrote: Did you send to JE? DARREN K. INDYKE DARREN K. INDYKE, PLLC 575 Lexington Avenue, 4th Floor emat The information contained in this communication is confidential, may be attorney-client privileged, and is intended only for the use of the addressee. It is the property of Darren K. Indyke, PLLC. Unauthorized use. disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. If you have received this communication in error, please notify us immediately by return e-mail, and destroy this communication and all copies thereof, including all attachments. Copyright of Darren K. Indyke, PLLC - © 2014 Darren K. Indyke, PLLC —All rights reserved. On Feb 3, 2015, at 12:49 PM, Cecile de Jongh < wrote: FYI With warm regards, Cecile On Tuesday, February 3, 2015 1:35 PM, Jean-Pierre Oriol > wrote: EFTA00353303 good afternoon cecile- I thought I had sent this back at the beginning of last month. below was a response from the director of environmental protection regarding your email of 12/29. I think it would be best for LSJ representatives to set up a meeting with director morancie on the applicability of the TFL. from her description below, I'm inclined to side with her on the need for the license. There isn't anything in Chapter 17 that spells out how an entity would go about disputing the application of TFLs , but an entity could possibly petition the Commissioner. Chapter 17 is not perfect and there's room for improvement but I think LSJ is misunderstanding the definition of terminal facility, just like they think DEP is misunderstanding the use of their stored fuel. I understand that they are storing and using it for private purposes, but it doesn't change the fact that they are engaged in storage of petroleum products at the very least near the VI's waters. Contrary to LSD's interpretation, the definition of terminal facility does not merely include vessels pumping or transferring fuel on water; in fact a vessel is only a terminal facility if it is engaged in vessel to vessel transfers. So for them to say that the law clearly covers facilities on the water and pup/transfer on water is not correct, it covers waterfront facilities on land engaged in storing, handling, etc. Waterfront is not explicitly defined in Chapter 17 but we don't interpret waterfront to mean along the shoreline. The terminal facility definition also includes facilities that are engaged in the storing and handling of petroleum products. LSJ is storing and handling petroleum products. Improper storage and spills and mishaps are still possible. The requirements behind the SPCC plan etc., is to provide mechanisms to avoid spills and ensure efficient clean-up in the event that something does happen and TFL coverage keeps facility's on DPNR's radar. Now I haven't been out there but Kent has shown me pictures and we've looked at it on google maps, and they have five tanks, three 10,000 gallon tanks at the top of a little hill which is about 60ft to water, and then two 2,500 tanks at the fueling station which could be regulated as USTs but he's thrown them under the same TFL. LSJ did not have a TFL for a while, not because DPNR didn't think they required coverage, it probably just slipped through a crack. Kent required them to update SPCC plan and pressure test lines, and put a "speed bump" near the fuel station to contain any fueling mishaps and they've already done all of it. So long as LSJ can demonstrate that they are prepared to prevent spills or effectively minimize the damage from a spill, that's what the SPCC and response plans, and other requirements tied to the TFL are designed to ensure. regards, )ean•Pierre L. Oriel Acting Commtssioner Department of Planning & Natural Resources 8100 Lindberg Bay, Suite 61 CEK Airport, Terrnmal Btdg Second Floc( From: Cecile de Jongh Sent: Tuesday, February 03, 2015 12:18 PM To: Jean-Pierre Oriol; Subject: Fw: TFL Application Good Afternoon JP. EFTA00353304 Please find below an email that I sent to you in late December. I know that you have been busy with changes in your department but I really want to follow up on the TFL issue. Please let me know what the next step(s) would be in disputing DPNR's practice of requiring Little St. James to have a TFL when the current rules and regs as well as the law do not indicate that this should be the case. Thank you in advance for your time and attention to this matter. With warm regards, Cecile On Monday, December 29, 2014 12:10 PM, Cedle de Jongh Good afternoon JP. wrote: I hope that you had a great Christmas Holiday with your family. Mr. Epstein still thinks that since there is no law or rules and regs currently in place that requires Little St. James to have a TFL. DPNR should not be enforcing this. What is the process for disputing DPNR's right under the law (as currently written) to require LSJ to have a TFL given that the law clearly covers those facilities which are on the water and pump/transfer fuel on the water which is not the case for LSJ? With warm regards, Cecile On Monday, December 8, 2014 8:19 PM, Jean-Pierre Oric wrote: good evening cecile- below is the response provided to me by staff with respect to your inquiry and the department's interpretation for implementation of the TFL. please let me know if you have any questions. Hopefully the info below provides some clarification. 1.40 CFR Part 112 is the Oil Pollution Prevention which includes Spill Prevention Control and Countermeasures (SPCC) requirements, which are imposed on TFLs locally and DPNR-DEP uses this as guidance. The federal regs cover onshore and offshore facilities engaged even in storage of oil which is defined to include petroleum products and due to location could be reasonably expected to discharge products in amounts to cause harm. 40 CFR §112.1 General applicability. (a)(1) This part establishes procedures, methods, equipment, and other requirements to prevent the discharge of oil from non-transportation-related onshore and offshore facilities into or upon the navigable waters of the United States or adjoining shorelines, or into or upon the waters of the contiguous zone, or in connection with activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, or that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Magnuson Fishery Conservation and Management Act). (b) Except as provided in paragraph (d) of this section, this part applies to any owner or operator of a non- transportation-related onshore or offshore facility engaged in drilling, producing, gathering, storing, processing, refining, transferring, distributing, using, or consuming oil and oil products, which due to its location, could reasonably be expected to discharge oil in quantities that may be harmful, as described in part 110 of this chapter, into or upon the navigable waters of the United States or adjoining shorelines, or into or upon the waters of the contiguous zone .. Definitions of Note from 40 CFR 112.2. EFTA00353305 Oil means oil of any kind or in any form, including, but not limited to: fats, oils, or greases of animal, fish, or marine mammal origin; vegetable oils, including oils from seeds, nuts, fruits, or kernels; and, other oils and greases, including /note= fuel oil sludge, synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other than dredged spoil. Onshore facility means any facility of any kind located in, on, or under any land within the United States, other than submerged lands. Offshore facility means any facility of any kind (other than a vessel or public vessel) located in, on, or under any of the navigable waters of the United States, and any facility of any kind that is subject to the jurisdiction of the United States and is located in, on, or under any other waters. 2. DPNR regulates TFLs based on authority granted in 12 V.I.C. § 701 et seq. (Chapter 17) Per 12. V.I.C. § 703 (9) "Terminal facility" means any waterfront facility of any kind, other than vessels not owned or operated by such facility, and related appurtenances located on land, including submerged lands, or on or under the surface of any kind of water, which facility and related appurtenances are used or capable of being used for the purpose of drilling for, pumping, storing, handling, transferring, processing or refining oil or other pollutants, including, but not limited to, any such facility and related appurtenances owned or operated by a public utility or a governmental or quasi-governmental body. A vessel shall be considered a terminal facility only in the event of a ship- to-ship transfer of oil, petroleum products or their by-products and other pollutants, and only that vessel going to or coming from the place of transfer and the terminal facility. With respect solely to application fees for licenses and annual license fees as required in this chapter, the term "terminal facility" shall not be construed to include the fuel storage tanks or other facilities of any marine service station having no more than twelve hundred gallons of pollutants in storage on the premises. Per 12 V.I. C. § 706 (7) On or after a date to be determined by the Department but in no case later than December 1, 1974, no person shall operate or cause to be operated any terminal facility without a terminal facility registration certificate issued by the Department. No registration certificate shall be valid for more than one (1) year unless revalidated by the Department. Each applicant for a terminal facility registration certificate shall pay the annual license fee and shall submit information, in a form satisfactory to the Department, describing the following: (a) The barrel or other measurement capacity of the terminal facility. (b) All containment and removal equipment, including, but not limited to, vehicles, vessels, pumps, skimmers, booms, chemicals and communication devices to which the facility has access, whether through direct ownership or by contract or membership in an approved discharge cleanup organization. (c) The terms of agreement and operation plan of any discharge cleanup organization to which the owner or operator of the terminal facility belongs. 3. Also per 12 V.I.C. § 706 (3) as a condition precedent to the issuance or renewal of a license, the Department shall require satisfactory evidence that the applicant has implemented, or is in the process of implementing, territorial and federal plans and regulations for control of pollution related to oil, petroleum products or their by-products and other pollutants and the abatement thereof when a discharge occurs. The storage capacity at al is approximately 35,000 gallons and within 30ft of water. From reading the October letter questioning the applicability of TFL coverage to LSJ, it referenced the waterfront location and that LSJ is not involved in transfer operations. While chapter 17 narrowly defines terminal facilities to include waterfront facilities, Chapter 17 failed to actually define waterfront and therefore it is up for interpretation, and DEP interprets to waterfront to include reasonable proximity to water and not merely right up on the shoreline. Second, the TFL requirements cover storage of petroleum products and not merely transfer operations. As far as the requirements imposed in the license itself, 12 V.I.C. § 706 (3) allows DPNR to impose reasonable conditions in the issuance of its permits to satisfy the purpose of the permit. This has been EP's stance with the applicability of TFLs. EFTA00353306 regards, )ean•Pierre L. Ord Acbng Commtssioner Department of Manning & Natural Rescurces 8100 Lindberg Bay, Suite 61 ax Airport, Termthal adg Second Floor St. Thanes VI 03802 N= From: Cecile de Jongh Sent: Friday, December OS, 2014 12:31 PM To: Jean-Pierre Oriol Subject: Re: TFL Application Good afternoon JP, Thank you for your phone call yesterday and helping me to clarify DPNR's position relative to which types of facilities that fall under the VI TFL requirements. I have some follow up questions, if you do not mind. 1. Can you provide or direct me to the citation in the federal law which imposes any requirements on the fuel storage on LSJ? 2. Can you provide or direct me to the citation in the USVI statute/code that authorizes DPNR to determine regulations that would impose requirements on the Fuel Storage on LSJ? 3. Can you provide or direct me to the specific statute, regulations, published policy and the specific provisions of the same which require licensing of LSJ's fuel storage, as well as the various requirements which Bernier imposed on us but which we were informed should not apply to our situation? Thank you in advance for your time and attention as they pertain to this matter. With warm regards, Cecile On Wednesday, December 3, 2014 7:24 PM, Jean-Pierre Oriol •z > wrote: good evening mrs de jongh- i forwarded the letter to director morancie and she indicated that she had not seen it before; however, she did provide some background in that the code allows for a terminal facility license to be issued to facilities storing/transferring fuels within 'reasonable proximity to the water' and given the size of the island, it allows for the department to make the determination that any such type facility would be required to have a TFL. director moranice also indicated that a number of the TFL for the Pi' 2015 cycle have been approved and LSJ may be included in those. i will follow up in the morning and give you a call. JP Sent from my iPad EFTA00353307 EFTA00353308