CG/LA Infrastructure
December 19, 2019
Federal Docket Management System (FDMS)
http://www.regulations.gov
Docket Number: EPA RO6-OAR-2019-0576-001,002
Subject: Substantive and Procedural Deficiencies
The Blueprint 2025 Initiative is a collaboration among infrastructure professionals, leading
infrastructure development companies and public sector project managers which advances and
supports plans and policies to restore the U.S. position as the country with the world’s best,
most efficient and most productive infrastructure. To advance this objective, we take positions
in opposition to the imposition of procedures and policies which unnecessarily delay
authorization of important projects, or which impose unnecessary or legally unauthorized
restrictions on the construction or operation of such projects. In the current context, we are
particularly interested in assuring that President Trump’s initiatives to streamline procedures
and assure both transparency and strict adherence to the applicable laws are fully effectuated.
To this end, we are submitting for the record in this matter a copy of our comments filed in a
Deepwater Port licensing proceeding which was initiated just prior to the licensing proceeding
for SPOT. The comments address procedures proposed to be followed by EPA Region VI in
issuing permits for Deepwater Ports in the Gulf of Mexico. As will be noted, they raise serious
questions regarding the applicability of the Clean Air Act to facilities located beyond territorial
limits in the Central and Western Gulf of Mexico, as well as associated issues relating to which
provisions of the laws of the nearest adjacent coastal state (Texas) are the applicable laws of
the Deepwater Port, and which federal agency is the “appropriate agency” to enforce those
laws against Deepwater Port facilities located beyond territorial limits.
Although these issues were responsibly raised in our comments, there has never been a
response, and EPA appears to have proceeded with permit issuance proceedings in exactly the
manner forewarned in our comments.
At a minimum, our comments, and the public interests which they reflect, must be addressed in
a public notice proceeding comparable to that for OCSLA facilities described in EPA’s Notice of
final determination of Applicability (43 FR 16393, April 18, 1978.) As made clear in the notice,
such a proceeding is mandatory in cases of first impression such as this one, would provide
legally mandated meaningful public notice of these critical issues and would allow for public
discussion of the key questions:
Is the Clean Air Act directly applicable to offshore facilities in the Central and Western
Gulf of Mexico?
What provisions of the law of the nearest adjacent coastal state are “applicable” under
the Deepwater Port Act?
What is the appropriate federal agency to enforce the applicable laws?
What 40 CFR Regulations authorize issuance of these permits? Part 55?, Part 70?, Part
71?
What “Guidance” did EPA consider in drafting these permits? Has that Guidance ever
been subject to public comment and does it accurately state the law?
These questions are given increased urgency by the clear mandates in Executive Order 13891 of
October 19, 2019.
Americans deserve an open and fair regulatory process that imposes new obligations on
the public only when consistent with applicable law and after an agency follows
appropriate procedures. Therefore, it is the policy of the executive branch, to the extent
consistent with applicable law, to require that agencies treat guidance documents as
non-binding both in law and in practice, except as incorporated into a contract, take
public input into account when appropriate in formulating guidance documents, and
make guidance documents readily available to the public. Agencies may impose legally
binding requirements on the public only through regulations and on parties on a case-
by-case basis through adjudications, and only after appropriate process, except as
authorized by law or as incorporated into a contract.
We appreciate the opportunity to submit these comments. Please address any questions to the
undersigned.
Best Regards,
Norman F. Anderson
Chief Executive Officer
CG/LA Infrastructure
Founder, Blueprint 2025
February 27, 2019
Federal Docket Management System (FDMS)
http://www.regulations.gov
Docket Number: MARAD-2018-0114
Attention: Mr. Roddy C. Bachman, USCG, Roddy.C.Bachman@uscg.mil
Mr. Wade Morefield, MARAD, Wade.Morefield@dot.gov
Subject: MARAD-2018-0114. Request for inclusion in the public record and comments
regarding EPA Proposed Procedures
Dear Sirs:
The Blueprint 2025 coalition recently became aware of the attached correspondence between
the United States Environmental Protection Agency (EPA), Region 6, and the United States
Coast Guard pertaining to the procedures and legal analyses that EPA Region 6 proposes to
follow in its participation in the licensing process for the Texas Gulf Coast Terminals, Inc.
Deepwater Port Project. We believe the regulatory approach described by the EPA Region 6 in
this letter is unsupported by any grant of authority in the Deepwater Port Act, the Clean Air Act
or the outer Continental Shelf Lands Act and is directly contrary to the clearly announced policy
of this Administration as well as our Country’s national interest and the public interests of
adjacent coastal States. For that reason, as well as to provide a minimal level of transparency
and administrative due process, we are requesting that this letter be included in the docket and
made available for public comment.
Regarding the basis for this outreach and by way of background, Blueprint 2025 is a
collaboration among infrastructure professionals, leading infrastructure development
companies and public sector project managers, which advances and supports plans and policies
to restore the U.S. position as the country with the world’s best, most efficient and most
productive infrastructure. Over the past few years, Blueprint 2025 has commented on a
number of executive branch regulatory reform initiatives, presented related congressional
testimony, hosted major leadership conferences addressing infrastructure and related
regulatory reform issues, produced independent studies evaluating the worthiness of, and
existing impediments to, large scale nationally-significant projects, and published detailed
suggestions for improvement of the permitting process. 1 In this regard, Blueprint 2025 takes
1 CGLA Infrastructure/Blueprint 2025 hosts annual events both in Washington, D.C. and in major cities throughout
North America, attended by high-level government officials and top infrastructure/major project professionals to
great, non-partisan interest in assuring that the permitting process being applied to projects of
major domestic and global significance, such as this Deepwater Port Project, will conform to
applicable legal requirements and this Administration’s clearly enunciated policies, which are
forward looking and encourage thorough but expeditious consideration of major projects.
Permitting or licensing processes should never hinder infrastructure development by
duplicative and unnecessary review that falls outside of statutory authority.
The benefits and importance of this and similar Deep Water Port Projects in the Gulf of Mexico
cannot be overstated. This project is one of a number of gulf coast deepwater port
infrastructure initiatives critical to the development of oil and gas infrastructure opportunities
in the region and the nation as a whole. In short, these gulf projects:
Reduce overall VOC emissions by displacing uncontrolled emissions from onshore terminals
loading at levels less than the 100 million bpd threshold, emissions beyond limits of control
technology for large onshore sources and emissions from reverse lightering operations in
the Gulf;
Reduce fuel use and stack emissions from reverse lightering operations;
Further reduce prospects for exceedances of NAAQS and health based limits by moving the
reduced emissions offshore;
Reduce risks of accidents and spills from near shore traffic congestion;
Provide the most cost-effective and safe access to VLCC and ULCC tankers capable of
carrying up to two million barrels per trip and enabling effective competition with exporters
in Russia and the Middle East;
Support tens of thousands of very high quality jobs;
Maintain oil and gas export competitiveness and domestic economic growth by providing
VLCC and ULCC loading capacity estimated to exceed six million barrels per day within the
next five years;
Directly address the need for efficient access to VLCC’s and ULCC’s without the major
dredging required at alternative onshore ports;
Allow the U.S.-based oil and gas industry to compete effectively in a highly competitive
international marketplace.
Blueprint 2025 is concerned that the licensing approach outlined in the above-referenced EPA
correspondence, in a number of respects, appears to be based on both erroneous
interpretations of the applicable law and disregard of Executive Order 1383 that clearly
articulates this Administrations’ intent “to promote clean and safe development of our Nation’s
encourage public/private sector dialogue and to share real-world data with those responsible for approving and
overseeing such development.
vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily
encumber energy production, constrain economic growth, and prevent job creation.”
Addressing Administration policy and Executive Order 1383 first, it is important to note that
Region 6’s seven-page letter references dozens of federal statutes and regulations, more than a
half dozen overlapping federal jurisdictional entities, and a host of proposed new actions it is
pursuing regarding exercise of jurisdictional oversight, yet gives no consideration to the
questions of whether these unilateral actions create an “undue burden,
” or unduly “encumber
energy production, constrain economic growth, and prevent job creation.” In fact, nothing in
the overall docket suggests directly, or even indirectly, that the burdens created by a new
independent federal agency role in this project have been considered by any federal regulator
as part of the design of their licensing approach. Furthermore, the Region’s justification for
adding new layers of regulatory burden and considerable expense, does not mention or
recognize the primary role of state law and state regulators in addressing the potential impacts
of the project.2
Just as important, the process outlined in the Region 6 letter deviates, in important respects,
from the procedure mandated by the Deepwater Port Act and, further, relies on erroneous
legal conclusions regarding the scope and applicability of EPA regulatory authority in the
Central and Western Gulf of Mexico. These issues are briefly discussed below:
1. The Region 6 proposed procedures are a departure from the “one window” process
mandated by the DWPA. The DWPA was enacted contemporaneously with the
groundbreaking legislation which continues to serve as the foundation for our Nation’s system
of environmental regulation—NEPA, the Clean Air Act, the Clean Water Act and others. It was
drafted and enacted by the same Members of Congress that passed these landmark
environmental laws and, as a result, is effectively harmonized and coordinated within that body
of law. Since the ports were to be located beyond territorial jurisdiction, the enactors were
completely free to determine the extent to which domestic law would be applicable3 and the
manner in which domestic regulatory authority would apply. They exercised this freedom
through the establishment of a “one window” licensing process in which concerned agencies4
2 In addition to the U.S. Coast Guard, five other federal agencies are copied on the EPA correspondence but no
state law entity has been afforded a copy of the letter which would, in effect, take away their authority to oversee
critical aspects of the project.
3 An exception to this is the Clean Water Act, pursuant to which EPA has jurisdiction to issue permits from sources
subject to U.S. jurisdiction into the Ocean. The NPDES permit for an ocean discharge is the only environmental
permit issued in the licensing process for the one existing port.
4 Agencies having “expertise concerning or jurisdiction over any aspect of the construction or operation of
deepwater ports….” (33 U.S.C. 1504 (e)
were required to participate, rather than conducting their own procedures. At the conclusion
of this process, the participating agencies, rather than issuing their own permits or
authorizations, were required to make recommendations, based on legal considerations within
their areas of responsibility, regarding any conditions necessary to bring the port into
compliance with any applicable laws and regulations. EPA participated in this process and
submitted recommendations that appear to be reflected in the conditions of the only crude oil
deepwater port license that has been issued to date. DWPA licenses, unlike permits under the
Clean Air and Clean Water Acts or other comparable laws, require both continuous monitoring
of environmental effects and continuous technology assessment to assure continuous upgrades
in the “best available technology” standards which the ports are required to have in place. The
DWPA thus provides superior environmental protection while avoiding redundant and
potentially conflicting procedures which could unduly burden the development of critical
energy resources. Both the law and this Administration’s clearly enunciated policy would thus
appear to require rigorous adherence to, rather than departure from, the DWPA’s “one
window” process.
2. EPA has no direct Clean Air Act authority in the Central and Western Gulf and the Clean Air
Act is not the federal law applicable to air emissions from deepwater ports. Contrary to
Region 6’s assertion, neither the DWPA nor OCSLA make the Clean Air Act directly applicable to
deepwater ports but, instead, designate the law of the nearest adjacent coastal state as the
“federal law” applicable to the deepwater port.5 Further, consistent with international treaty
requirements, neither law asserts jurisdiction over the “superjacent airspace” of ports or OCS
structures but limits the clean air related regulatory scope to that which is necessary to protect
ambient air quality in the adjacent coastal areas.6 Thus, the Court of Appeals’ Kleppe7 decision
made clear that, at that time, the Secretary of Interior’s Clean Air Act related authority on the
outer Continental Shelf was exclusive and EPA had no jurisdiction.
The Secretary of Interior’s exclusive jurisdiction regarding air emissions on the OCS continued
until 1990, at which time the Congress, at the instigation of East Coast, Eastern Gulf and West
Coast states, passed section 328 of the Clean Air Act8 which essentially reversed Kleppe for the
East Coast, Eastern Gulf and West Coast by providing EPA with clear authority to establish
regulations and permitting procedures, and otherwise control emissions from “OCS sources” in
those areas. With respect to the Central and Western Gulf, however, Interior’s authority
remains essentially unchanged; it remains the exclusive Clean Air Act authority for OCS
emissions and is to consult with EPA and potentially affected states to coordinate regulation of
5 43 U.S.C.1333 (a) (2); 33 U.S.C. 1518 (b)
6 33 U.S.C. 1501 (b) 1518; 33 U.S.C. 1518; 43 U.S.C. 1333.
777 9 ELR 20661 (9th Cir. 1979).
8 Id
offshore and onshore emissions. EPA’s authority in the Central and Western Gulf is limited to
consultation with the Secretary of Interior in connection with the exercise of the Secretary’s
authority to assure coordination of air control regulation for outer Continental Shelf emissions
and for emissions in adjacent onshore areas.
9
This conclusion is given further weight by the Supreme Court’s ruling in RJR Nabisco, Inc. v.
European Community, which held that “Absent clearly expressed congressional intent to the
contrary, federal laws will be construed to have only domestic application.” 10 While Section
328 does establish such a clear intent with respect to the East Coast, Eastern Gulf and West
Coast, its carve out of the Central and Western Gulf clearly enunciates exactly the opposite
intent with respect to that geographic area. The Region 6 assertion of jurisdiction to support its
proposed regulatory approach in the Central and Western Gulf is contrary to applicable law.
3. A deepwater port is not a “new source” as defined in the Clean Water Act.
As noted above, the Clean Water Act, unlike the Clean Air Act, is supported by a clear
expression of intention that the NPDES permit program is extraterritorially applicable to
discharges to the ocean from sources, other than vessels, which are otherwise subject to U.S.
jurisdiction. Thus EPA’s jurisdiction to issue permits for the largely inconsequential point source
discharges into the oceans from deepwater ports is not in question. In its letter, however,
Region 6 takes the position that, because Section 1506 (9) (d) of the DWPA provides that a
deepwater port “shall be considered a ‘new source’ for purposes of the … Federal Pollution
Control Act…” the issuance or reissuance of such permits will always be subject to NEPA. While
this may seem to be an issue of little consequence, it will put this and future EPAs in the
position of deciding, based on environmental factors, whether or not a facility may continue to
operate, unless it can eliminate water discharges to the ocean. The contingency created by this
interpretation, while perhaps remote, could significantly affect the financing of some projects.
Such a result would not be in the national interest nor can it be supported by any reasonable
interpretation of either the DWPA or the Federal Pollution Control Act
At the time the DWPA was enacted, the CWA, in 33 U.S.C. section 1316, defined “new source”
as follows:
The term “new source” means any source, the construction of which is
commenced after the publication of proposed regulations prescribing a standard
of performance under this section which will be applicable to such source, if such
standard is thereafter promulgated in accordance with this section [emphasis
added].
9 42 U.S.C 7627
10 579 U.S. (2016); 136 S. Ct. 2090 (June 20, 2016.)
And provided, in section 33 U.S. C. 1376 that:
Except for …I issuance of a permit under section 1342 of this title for the discharge of
any pollutant by a new source as defined in section 1316 of this title, no action of the
Administrator taken pursuant to this chapter shall be deemed a major Federal action
significantly affecting the quality of the human environment within the meaning of the
National Environmental Policy Act of 1969 [emphasis added].
Obviously, since no standards of performance for deepwater ports were proposed at that time
(nor have they been at any time since), a deepwater port could never have been a “new
source” as defined in the FWPCA, and the issuance of a permit for a port could have never been
deemed a major federal action significantly affecting the quality of the human environment.
The DWPA language suggesting that deepwater ports should be “considered” a new source for
purposes of the FWPCA must be read, at most, as a suggestion to consider adoption of new
source performance standards. EPA, over a period of forty plus years, has consistently taken
the position that water discharges from deepwater ports are not sufficiently significant to merit
the adoption of new source performance standards. In this context, it would clearly be unfair
and contrary to common sense to subject a deepwater port, which is clearly “existing” in every
commonly understood sense of the word, to the consequences of retroactive designation as
“new”. The agency cannot be allowed to leverage a simple expression of congressional concern
into an every five year life or death decision over projects which will cost in the billions. The
distinction between “shall be considered “and “defined as” must be recognized, taken into
account and fully implemented. The idea that somehow the renewal of permits for these
insignificant discharges triggers a need for a facility wide environmental review every five years
is counterproductive and detrimental to both our economy and the environment.
A central tenet of Blueprint 2025’s policy is the recognition that reform of the permitting
process for major infrastructure projects is absolutely essential if the U.S. is to modernize its
infrastructure in time to allow development of the new technologies which will enable us to
keep pace with the modernization programs of our major global competitors.
The deepwater port projects provide case studies for evaluation of the success of national
regulatory reform efforts. We assume that there will be agreement that all stakeholders are
entitled to permitting processes which are efficient, realistic, transparent and consistent, and
also which conform to applicable laws and provide reasonable certainty. Efficiency and fairness
of the federal permitting process are critical for realization of critical Gulf Coast infrastructure
projects and all critical infrastructure projects throughout the United States.
This experience with the DWPA demonstrates that, absent strong policy leadership and a strong
sense of direction, even the most efficient permitting process will have a tendency to lose its
way and fall into disrepair. We strongly urge restoration of the consultative processes which
led to the early successes of the DWPA program and, we would hope, to broader application of
key elements of that process, such as the “one window” approach and firm time limitations,
which made it successful.
We appreciate your consideration of these comments. Our intention is to continue monitoring
this and similar proceedings and to participate as necessary to assure efficiency and fairness.
Thank You.
Best Regards,
Norman F. Anderson
Chief Executive Officer
CG/LA Infrastructure
Founder, Blueprint 2025
ATTACHMENTS: Letter from Mr. Robert D. Lawrence, Senior Policy Advisor, Energy Issues; EPA
Region 6 to Mr. Roddy C. Bachman, USCG regarding EPA Authority Over Construction and
Operation Texas Gulf Terminals Inc. Deepwater Port Act Project
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 6
1445 ROSS AVENUE, SUITE 1200
DALLAS, TX 75202-2733
July 26, 2018
Mr. Roddy C. Bachman
U.S. Coast Guard (CG-OES-2)
Vessel and Facilities Operating
2703 Martin Luther King, Jr. Avenue S.E.
Washington, DC 20593-7509
Subject: EPA Authority Over Construction and Operation
Texas Gulf Terminals Inc. Deepwater Port Act Project
Dear Mr. Bachman:
EPA Region 6 received a copy of the deepwater port license application package for Texas Gulf
Terminals Inc. (TOTI) crude oil export terminal on July 13, 2018, and provides these comments
to assist the United States Coast Guard/ Maritime Administration (USCG/ MARAD) and their
contractors as the agencies determine the administrative completeness of the Deepwater Port Act
(DPA) license application package and initiate scoping for the Environmental Impact Statement
(EIS) under the DPA and the National Environmental Policy Act (NEPA). The overall project
will consist of three distinct, but interrelated components: 1) the “offshore” component, 2) the
“inshore” component, and 3) the “onshore” component.
The proposed deepwater port ( offshore component) would be located approximately 12. 7
nautical miles off the coast of North Padre Island (Kleberg County, Texas) and consist of 14.71
miles of two (2) new parallel 30-inch diameter crude oil pipelines, which terminate at a single
point mooring (SPM) buoy. The SPM buoy system would be positioned in water depths of
approximately 93 feet and consist of a pipeline end manifold, catenary anchor leg mooring
system, and other associated equipment.
The inshore components associated with the proposed project includes 5.74 miles of two (2) new
30-inch diameter crude pipelines and onshore valve station used to connect the onshore project
components to offshore project components. The inshore portions of the proposed pipeline
infrastructure cross the Laguna Madre bay complex, the Gulf Intracoastal Waterway, and extend
across North Padre Island to the mean high tide line located at the interface of North Padre Island
and the Gulf of Mexico. Additionally, the inshore project components include the installation of
an onshore valve station on North Padre Island to allow for the isolation of portions of the
proposed pipeline infrastructure for servicing, maintenance, and inspection operations.
Onshore components associated with the proposed project include the construction and operation
of an onshore storage terminal facility (OSTF), booster station, and approximately 6.36 miles of
two (2) new 30-inch diameter parallel crude pipelines with Nueces and Kleberg counties, Texas.
The OSTF would occupy approximately 150 acres in Nueces County, and would consist of all
necessary infrastructure to receive, store, measure, and transport crude oil through the proposed
Internet Address (URL) • http://www.epa.gov
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inshore and deepwater port pipeline infrastructure. (Note – At the time of the application, the
TGTI has not determined the number, precise routing, ownership, extent to which destinations
other than the OSTF will be served and other details related to the shipment of oil from the
production fields to the OSTF. TGTI will be required to supplement the application when this
information is available.) The proposed booster station would occupy approximately 8.25 acres
in Kleberg County, and would consist of the necessary pumping infrastructure to support the
transportation of crude oil from the OSTF to the deepwater port. Onshore pipeline infrastructure
would extend from the OSTF to the landward side of the mean high tide line located at the
interface of the western shoreline of the Laguna Madre.
EPA Region 6 appreciates this opportunity to provide the following information to the Coast
Guard and Maritime Administration as part of the coordinated licensing effort for this facility.
We reviewed the TGTI documents and have determined that the applications for EPA Clean Air
Act permit actions are administratively complete in that all of the required EPA forms and
certifications were included. However, there is an issue with the Clean Water Act permit
application (see below). In addition to the comments below, we reserve the right to request
additional information as we more fully examine the permit applications and begin to develop
Agency decisions regarding permits for the proposed facility. The NEPA and cross-cutting
statutes and regulatory consultation documents need to be sufficient for our use in our regulatory
permit actions. EPA would appreciate the opportunity to participate in the consultations as an
action agency.
CLEAN WATER ACT. Due to the nature of the delegation of the Clean Water Act (CW A)
National Pollutant Discharge Elimination System (NPDES) permit authority in Texas, EPA
Region 6 is the NPDES permitting authority for the project, including onshore, inshore, and
offshore discharges.
The Texas Gulf Terminals Inc. deepwater port license application received by EPA Region 6
included a copy of the NPDES permit application forms. In accordance with the applicable
Environmental Permit Regulations, ( 40 CFR 124.3(c ), 54 FR 18785, May 2, 1989) this
information was reviewed and determined to be administratively incomplete. During the
technical analysis of the application, other deficiencies may be determined and a request for
additional or clarifying information will be made to the applicant.
The applicant should submit NPDES Form 2E -Application for facilities which do not discharge
process wastewater for its hydrostatic test discharge water. NPDES Form 2C is the Application
for a permit to discharge wastewater for existing industrial facilities (including manufacturing,
commercial, mining and silvicultural operations).
Because the Deepwater Port Act (DPA) designates the proposed type of facility a “new source”
for CWA purposes, EPA will consider the information in the MARAD/Coast Guard’s EIS and
consultation documents in its NPDES permit action in accordance with CWA § 51 l(c)(l) and
DPA § S(f). Of particular interest will be the conclusion of consultations with the National
Marine Fisheries Service and/or U.S. Fish and Wildlife Service for compliance with the
Endangered Species Act and the Magnuson-Stevens Fishery Conservation and Management Act;
including affects on fish, shellfish, and threatened and endangered species, in all lif e stages,
caused by the construction and operation of the facility. EPA is also intending to reply on the
-2-
National Historic Preservation Act consultations with Advisory Council on Historic Preservation
and the Texas Historical Commission for compliance with the National Historic Preservation
Act.
CLEAN AIR ACT. EPA does not normally administer the Clean Air Act (CAA) in the western
Gulf of Mexico because under CAA Section 328, the Department of Interior’s Bureau of Ocean
Energy Management is responsible for regulating outer continental shelf (OCS) sources in that
area. As presented in the application, the proposed source is not an OCS source, so Section 328
does not apply. Instead, EPA is the CAA permitting authority. EPA regards a provision of the
DPA, 33 U.S.C. § 1501, et seq, as the primary source of its authority to apply the CAA to
activities associated with deepwater ports. The DPA applies federal law and applicable State law
to deepwater ports, and further designates deepwater ports as “new sources” for CAA purposes.
Accordingly, for the source’s pre-construction and operating permits, EPA will rely on the
provisions of Title 1 and Title V of the CAA, supporting applicable regulations and on the state’s
law to the extent applicable and not inconsistent with federal law. EPA will also consider the
information in the MARAD / Coast Guard’s EIS and consultation documents in its CAA permit
actions, and in particular will rely on the MARAD / Coast Guard’s consultations with the
National Marine Fisheries Service and/or U.S. Fish and Wildlife Service for compliance with the
Endangered Species Act and the Magnuson-Stevens Fishery Conservation and Management Act
as well as consultations with the Advisory. Council on Historic Preservation and the Texas
Historical Commission for compliance with the National Historic Preservation Act.
The applicant asserted that the nearest adjacent coastal state to the operation is Texas, based on
the location of the terminal. EPA concludes that, in accordance with Section 19 of the DPA, the
applicable state laws and regulations governing air quality at TGTI are those of Texas.
We have not completed our review the permit applications or the supporting modeling analysis
included in Appendix Vof the DWP License application for technical completeness. This is only
a preliminary review for administrative completeness. In EPA’ s preliminary review, air permit
related application materials appear to generally include regulatorily required administrative
information. After EPA completes a technical review of the applications, additional technical
information may be requested in writing or though meetings with the applicant. We reserve the
right to inform the applicant that their air permit related applications are technically incomplete
pursuant to each set of implementing regulations the applicant has applied under. At this point in
EPA’s review, we believe that the applications as submitted are administratively complete.
MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT. Under Section 101 of
the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), 33 U.S.C. § 1401, no
person may. transport material from the United States or on an American flagged vessel for the
purpose of dumping it in ocean waters in the absence of a permit issued by EPA pursuant to
MPRSA § 102. A MPRSA § 102 permit is also required for any person transporting material from
anywhere for the purpose of dumping it in the territorial seas or to the contiguous zone where it
might affect the territorial seas.
Based on our current understanding, it does not appear that this proposal includes transporting
materials for the purpose of dumping it in connection with the construction or operation of the
Texas Gulf Terminals Inc. facility. Moreover, “dumping” does not include “construction of any
fixed structure or artificial island nor the intentional placement of any device in ocean waters, or
-3-
on or in the submerged land beneath such waters, for a purpose other than disposal, when such
construction or such placement is otherwise regulated by Federal or state law … ” MPRSA §
3(:f). The construction of this deepwater port appears to fall within this statutory exclusion.
However, if this understanding is not correct or if dredged materials associated with the
construction/placement of the SPM facility and pipelines require disposal, MRPSA Sections I 01
and 103 may apply, as well as provisions of the Clean Water Act. The following information is
provided in that event.
The Corpus Christi Ship Channel Ocean Dredged Material Disposal Site (ODMDS) was
primarily developed in consultation with US Army Corps of Engineers (USACE) – Galveston to
provide placement of suitable navigational sediment. EPA believes it would be beneficial to
understand what pertinent information would be helpful should you choose to utilize the
ODMDS site.
First, EPA Region 6 looks forward to working with Texas Gulf Terminals Inc. should you choose
to utilize the ODMDS. However, EPA also realizes that sometimes dredged material may not be
suitable to be used beneficially but the Agency encourages that suitable material should be
considered for beneficial uses. EPA encourages that the facility continues to work with all local,
state and federal entities to look for suitable beneficial placements. EPA believes that suitable
dredged material provides productive purpose from which economic, social or other benefits may
be derived. Compared to disposal of dredged material in confined sites, beneficial use reduces
the need for disposal. Examples of beneficial use include wetlands restoration, beach
nourishment, shoreline construction, and habitat creation. The Clean Water Act (CW A) Section
404 governs discharge of dredged or fill material into ”waters of the United States,” including the
placement of dredged material in the territorial sea for a purpose other than disposal. For
information on dredged material permitting under CW A 404, please see our Section 404 of the
Clean Water Act Web page.
Second, should the Texas Gulf Terminals Inc. facility choose to utilize the Corpus Christi
ODMDS, it is imperative that early coordination with USA CE – Galveston and EPA be
conducted due to potential site capacity issues for this site. This is an enormous undertaking and
will require that all parties work together collaboratively to achieve a successful outcome.
Third, EPA and USACE jointly published the Ocean Testing Manual, a national testing manual
for the evaluation of dredged material proposed for ocean dumping (also known as the Green
Book). Under section I 03 of the MPRSA, any proposed dumping of dredged material into ocean
waters must be evaluated through use ofEPA’s ocean dumping criteria (40 CFR 220-229). The
Ocean Testing Manual provides guidance for sampling, testing, and analysis of water, sediment
and tissue to evaluate the environmental acceptability of dredged material proposed for ocean
disposal. Uncharacterized materials are prohibited from ocean disposal (40 CFR 227.S(c)).
Therefore, EPA and USACE review sampling and analysis plans to ensure that each project’s
sediments are appropriately characterized. EPA recommends that Texas GulfTenninals Inc. look
at the requirements for utilization of the ODMDS should you choose to utilize this site. It is
critical that if you should have any questions, to work with USA CE – Galveston regulatory to
better understand USACE and EPA’s role during the perrnitting process. All 3rd party dredging
permits are handled by the USA CE in coordination with EPA. Evaluation of dredged material for
ocean disposal under the Marine Protection, Research and Sanctuaries Act (MPRSA), sometimes
referred to as the Ocean Dumping Act, relies on standardized testing using biological organisms
(bioassays). The purpose of the evaluation procedures is to ensure efficient and reliable
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protection against toxicity and bioaccumulation that otherwise may impair the marine
environment or human health. The technical guidance is intended for use by dredging applicants,
laboratory scientists, and regulators. Regional guidance is provided in the Regional
Implementation Agreement
Also, if you should need further information about the Region 6 program for Ocean Disposal,
please feel free to visit our website at: https:/faww.epa.uov/ocean-dwnping/managing-ocean-
dumping-epa-region-6 or an overview of the entire program nationally at:
https:/ /v.rww .epa.gov/ocean-dumping
COAST AL AND WETLAND RESOURCES. As we currently understand the project, it
would involve anchoring a Single Point Mooring (SPM) buoy in about 93 feet of water
approximately 12.7 nautical miles off the coast of North Padre Island and connecting it to inshore
components via 14.71 miles of two (2) new parallel 30-inch diameter crude oil pipelines. The
inshore components include 5.74 miles of two (2) new 30-inch diameter pipelines and an onshore
valve station on North Padre Island. The latter pipelines would transit the Laguna Madre Bay
system, the Gulf Intracoastal Waterway, and North Padre Island. The onshore components would
include a storage terminal facility that would require a 150-acre site in Nueces County, a booster
station located on an 8.5-acre site in Kleberg County, and 6.36 miles of two new 30-inch
diameter parallel pipelines crossing through Nueces and Kleberg counties.
It is clear that these components, taken individually and considered cumulatively, could have
significant impacts to vital coastal and wetland resources. Therefore, it is imperative that all
necessary measures be taken to avoid such impacts to the degree possible and to fully mitigate or
compensate for those that cannot be avoided. Beyond compliance with the National
Environmental Policy Act and the Clean Water Act, there is also a fundamental need to ensure
that the proposed project is consistent with federal and State efforts to restore coastal resources.
The rapid deterioration of coastal areas in the northern Gulf of Mexico is regarded by many as
one of the nation’s most critical ecological problems.
Accordingly, all practicable efforts should be taken to ensure that the proposed project does not
inhibit or otherwise conflict with reasonably foreseeable future restoration efforts in this area.
Special attention should be afforded to the alternative plans currently being analyzed as part of
the Texas Coastal Restoration and Protection Feasibility Study (U.S. Army Corps of Engineers)
and to those found in the Texas Coastal Resiliency Master Plan (Texas General Land Office).
Any proposed projects under the Deepwater Horizon Natural Resource Damage Assessment and
RESTORE Act programs that might be located in areas potentially impacted by this proposal
should be evaluated. Coastal natural resource and sensitive species impact mitigation should be
coordinated with the Coastal Bend Bays and Estuaries Program.
The impacts from construction and operation of the deepwater port and ancillary facilities,
including dredging and any projected impacts to wetlands and special aquatic sites (including
seagrass beds), are of particular interest to us and should be analyzed in the draft Environmental
Impact Statement (EIS). We would look for a thorough evaluation in the draft EIS that
demonstrates planning efforts to avoid, minimize, and compensate for wetland and special
aquatic site losses associated with any proposed dredged material disposal, construction work,
and operation and maintenance activities. All unavoidable direct and indirect impacts would need
to be fully compensated. In summary, the planning for this project must ensure that adverse
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impacts to natural marine resources, coastal wetlands, and special aquatic sites (including
seagrass beds) have been avoided to the maximum extent practicable, taking advantage of every
opportunity for beneficial use of any dredged material produced.
We recommend that an aquatic resource and wetland mitigation plan be included within the draft
EIS, along with the Clean Water Act Section 404 (b )( 1) analysis. The mitigation plan should be
included in the draft EIS along with the alternatives analyses and any additional information
relevant to potential impacts to wetlands and other special aquatic resources. This would ensure
that the draft EIS has sufficient information to demonstrate whether potential adverse impacts
have been adequately addressed. Providing this material after public review of the draft EIS does
not allow optimum analysis of the entire range of significant potential environmental impacts.
Impacts to aquatic resources and wetlands should include direct and indirect effects, which might
include deepwater port service and maintenance functions such as harboring of supply boats and
other support vessels. Provisions for ensuring adequate post-implementation project monitoring
should be included. In addition, means of assuring mitigation success should also be incorporated
into the proposed plan.
Over the years, human uses and natural events have combined to cause a critical habitat loss in
this ecologically sensitive area that is important to the long-term protection of resident and
migratory shorebirds and sea turtles. Construction and maintenance operations should include
plans for avoiding impacts to nesting avian and sea turtle species, particularly those that utilize
the shoreline, wetland, and shallow water habitats of North Padre Island and Laguna Madre for
any portion of their life cycle.
The environmental analyses should explain whether the SPM location will negate the need for
ballast water exchange and the concomitant potential for invasive species introduction. The
potential for introduction of these species via other pathways associated with the vessels should
also be evaluated.
The draft EIS should include an analysis of marine pollution issues that might arise from the
potential increase in foreign vessel traffic in the area.
. In addition, the EIS should address any projected marine and coastal natural resource impacts to
be expected as a result of hurricanes or tropical storms. As we understand it, the Single Point
Mooring system includes anchors attached to the seabed and anchor chains and chain stoppers
that allow the buoyed facility to move freely within a defined area. The environmental analysis
should explain whether these features would cause bottom scour and impacts to benthic
communities. The analysis of alternatives to reduce environmental impacts should also include a
comparison of various types of Single Point Mooring systems, including Catenary Anchor Leg
Mooring and Single Anchor Leg Mooring.
NATIONAL ENVIRONMENTAL POLICY ACT. EPA Region 6 desires to be a cooperating
agency in the development of the EIS by MARAD and USCG. Additionally, Section 309 of the
Clean Air Act requires EPA to review EISs prepared by other agencies and refer projects it finds
“environmentally unacceptable” to the President’s Council on Environmental Quality (CEQ).
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MARAD/USCG should submit the EIS to EPA through thee-NEPA electronic filing system.
Filing instructions are available on EP A’s NEPA website at
https://wv,w.epa.gov/nepa/environmental-impact-statement-filing-guidance
Please provide an additional copy of both draft and final EISs to EPA Region 6 for consideration
in its NPDES permit action.
POINT OF CONTACT. I will be the primary EPA point of contact for communications on the
TGTI project. Correspondence should be directed to me as follows:
Robert D. Lawrence
Senior Policy Advisor – Energy Issues
EPA Region 6
1445 Ross Avenue (6MM-A)
Dallas, TX 7 5 202
(214) 665-6580
Once again, EPA Region 6 looks forward to working with the Coast Guard and Maritime
Administration on this project.
Sincerely yours,
D Lawrence
Robert • . Energy Issues
Semor
. Policy Advisor –
cc: Mr. Matt Kimmel
Corps of Engineers, Corpus Christi, TX
Ms. Terri Thomas
Bureau of Ocean Energy Management, New Orleans LA
Dr. Roy E. Crabtree
NOAA National Marine Fisheries Service, St. Petersburg, FL
Mr. Pat Clements
Fish & Wildlife Service, Corpus Christi, TX
Ms. Yvette Fields
Maritime Administration, Washington, DC
Ms. Denise Rogers
Texas Gulf Terminals, Inc., Houston, TX
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