Mar 21, 2013

TBNT & IIT file notice of intent to sue Army Corps over its DCP approvals.

SEARSPORT. On Wednesday, March 20th,  Thanks But No Tank (TBNT) and  Islesboro Islands Trust (IIT)  filed a 60-day Notice of Intent to sue the Army Corps of Engineers (Corps) for violations of the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA). 
DCP's proposed megatank site: forest in center foreground

These violations occurred when the Corps issued the May 2012 Environmental Assessment (EA) and CWA Section 404 permit for a 22.7 million gallon liquefied petroleum gas (LPG) marine import terminal, storage and distribution facility proposed by DCP Searsport LLC.
The Notice requests that the Corps immediately withdraw the 2012 EA and CWA permit and reassess the project in light of significant new information that has surfaced since the EA was issued.  As explained below, this new information demonstrates several important points, including:
  • there is no need for a marine terminal to import foreign LPG;
  • more cost-effective and less environmentally damaging practicable alternatives are available to meet Maine’s energy needs; and
  • the Corps failed to consider the grave consequences for Penobscot Bay if the Searsport terminal is used to export LPG.
While releasing the Intent to Sue, IIT Executive Director Steve Miller declared: “By constraining the Corps’ EA to support the DCP terminal project and by arbitrarily excluding other viable solutions, the Corps failed its duty to provide federal, state and local decision-makers and the public with the information necessary to properly weigh the potential economic and environmental costs and benefits of the proposed action. Accordingly, the Corps must withdraw the 2012 EA and wholly re-do its analysis.”
Steve Hinchman, project attorney, added, “Recent events and new information demonstrate that the EA is wrong, out-of-date, and unreliable, and must be supplemented…There is no need for a new marine LPG terminal to import foreign LPG into Maine or anywhere on the East Coast.  New information demonstrates that other fuels and energy sources are practicable and reasonable alternatives to increased propane use.”
According to the legal filing, NEPA states that the Corps must withdraw the 2012 EA and initiate a supplemental analysis. Similarly, under the CWA, the Corps must withdraw the 2012 permit to fill wetlands under their jurisdiction and fully evaluate if there are less environmentally damaging alternatives that would supply the Maine energy market and/or to provide new export terminals for domestic LPG.
As Tara Hollander, TBNT Steering Committee, pointed out, “No company–including DCP–is using the marine import facilities that exist today to bring in foreign LPG. In fact, there is a glut of domestic LPG which costs at least a dollar less than imported LPG.”
Further background: The filing submitted by IIT and TBNT’s legal team methodically outlines repeated Corps failures in its review of the DCP terminal project under the required NEPA and CWA statutes:
  • The EA fails to take a “hard look” at Maine’s LPG infrastructure, market trends and reasonable alternatives. The Corps failed to consider the current state of Maine’s existing LPG supply chain and infrastructure. And, they illegally excluded from the analysis any consideration of the ongoing and fundamental transformation of the Maine and global LPG and energy markets due to changes in production and supply. NEPA requires a “hard look” when a proposed action will affect the quality of the human environment in a significant manner or to a significant extent.
  • The Corps limited the overall project purpose of the EA to the marine import of foreign-sourced LPG. Despite extensive public comment that, because of the ongoing boom in domestic gas production, Maine has no need for a marine LPG import terminal, the Corps applied a presumption to assume–without independent evaluation or verification–that the DCP project was viable and needed in the marketplace. The Corps excluded from review any consideration of non-marine (i.e. rail or truck) terminals, alternative sources of LPG, alternative fuels, such as natural gas and compressed natural gas and alternative energy sources such as biomass and solar.
  • The Corps’ permit relied on unsubstantiated emergency response claims and failed to adequately consider potentially devastating human and environmental risks.
  • The Corps failed to acknowledge the impacts of the dredging which the proposed LPG facility would require–dredging close to one million cubic yards of sediment from the Mack Point vicinity.
  • The EA failed to consider the potential use of the Searsport facility as an LPG export terminal. Under NEPA regulations, the Corps must consider direct, indirect and cumulative effects of a proposed action, including “reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.”
The entire 60-day Notice of Intent to Sue can be downloaded here.  Additional documents pertaining to the Army Corps of Engineers can be found on our Army Corps Docs page.

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