COASTAL WATERS PROJECT APPEAL OF RELICENSING CONDITIONS FOR DOD JETFUEL TERMINAL ON MACK POINT, SEARSPORT, MAINE (PENOBSCOT BAY) AT ISSUE * The Defense Fuel Support terminal and tankfarm on Mack Point in Searsport, Maine, supplies fuel to Bangor Air National Guard, Brunswick Naval Air Station, and the Coast Guard station at Rockland. Mack Point straddles between Searsport Harbor and Long Cove in upper Penobscot Bay, which is a major fish and shellfish spawning and nursery area for the western Gulf of Maine. * Coastal Waters Project and Clams' Fiesta, Inc, a local mariculture operation, requested that renewal of the military terminal's 5 year license be made conditional on a committment to toxics testing of sediments and mussels from the seafloor directly surrounding the complex's tankfarm and wharf. They also asking that the number of chemicals tested for be increased to include several additives found in DOD jet fuels. * Credible research shows that even small amounts of jetfuel and its additives can reduce fish and shellfish spawning success in an estuary like Penobscot Bay. It is possible that the facility is at least partly to blame for the sharp decline of fish in Penobscot Bay in the latter half of this century, * The state and the Defense Department counter that unless two privately owned fuel terminals join in the testing, they plan to restrict sampling to culverts, a beach and a stormwater outfall on the defense department property. Nor will they test for jet fuel additives present in fuels stored at the facility, including diethylene glycol monomethyl ether (DGME), a jetfuel system icing inhibitor, and "Stadis 450", a static electricity dissipator whose ingredients are 'confidential'. * If the state and feds refuse to accede to Clams' Fiesta and the Coastal Waters Project requirements, the two opponents plan to appeal the issue to the Maine Board of Environmental Protection, which has the power to veto the license plan. Information: Ron Huber 207©596©7693, Charlie Stevens 594©7592 FAX TRANSMITTAL COVER + 8 PAGES JULY 8, 1995 TO: Colonel Michael D. Broderick, USAF Defense Logistics Agency Defense Fuel Supply Center Cameron Station Alexandria, VA 22304©6160 FR: Ron Huber, Director Coastal Waters Project POB 1811 Rockland ME 04841 RE Oil Terminal License, DFSP Searsport, ME MSG: The following is a copy of the Coastal Waters Project appeal of the Maine Department of Environmental Protection's renewal of oil terminal license # 0©406©91©B©R for Defense Fuel Support Point Searsport. The appeal was filed with the Maine Board of Environmental Protection on July 5, 1995. Please do not hesitate to contact me if you have any questions. Sincerely, Ron Huber, director Coastal Waters Project cc files NOTICE OF APPEAL OF DEPARTMENT OF ENVIRONMENTAL PROTECTION RENEWAL LICENSE DECISION REGARDING DEFENSE FUEL SUPPORT POINT SEARSPORT Pursuant to 38 MRSA 341-D(4) the Coastal Waters Project hereby appeals the decision by the Department of Environmental Protection to grant renewal of oil terminal facility licence # 0ª406©91©B©R to US Defense Fuel Support Point Searsport, Penobscot Bay Fuel Depot, Searsport, Maine. Coastal Waters Project appellants include: Ron Huber, Charles Stevens, Linda Stevens, Robert LeVangie. STANDING The Coastal Waters Project is a citizens' association dedicated to restoring and protecting the ecological integrity of the nearshore waters of the US Atlantic Coast through local oversight and citizen action. Our standing for this appeal is based on: 1. Appellants' use of Penobscot Bay to culture and harvest shellfish. 2. Appellants' involvement in other actions to protect Penobscot Bay fisheries. 2. Appellants' involvement in the DFSPS license renewal process from its outset. We are appealing the following findings, conclusions and conditions of the Defense Fuel Support Point, Searsport (DFSPS)'s renewal license: Findings # 2 and #4; Conclusions: # 7 and #10; Condition #4. We are requesting that, in light of the public marine resources at stake, the Board of Environmental Protection hold a public hearing on our appeal. * FINDINGS OBJECTED TO* * FINDING #2* Statutory Criteria. * BASIS OF OBJECTION* The department unreasonably limited its statutory criteria for this relicencing to 38 MRSA Section 545 et seq Section (1) and (2). The relicensing process is also subject to criteria under the Natural Resources Protection Act (NRPA), which in Section 480©D specifically * disallows* DEP decisions that could unreasonably harm any significant estuarine or marine fisheries or other aquatic life. The fundamental argument of the Department © concurring with the Defense Fuel Supply Center's position that a requirement to conduct sediment testing and biomonitoring in the waters directly adjacent to the terminal is arbitrary due to the existence of two other nearby fuel terminals© is inconsistent with requirements of NRPA. Shellfishing is an ongoing and historically significant economic activity in Penobscot Bay. Petroleum contamination of sediments has been found by reputable scientists to cause significant declines in shellfish reproductive success and in reduction of clam lifespan. Appellants are being economically disadvantaged by reduced ability of Penobscot Bay to support shellfish stocks. The Department has not reviewed the relicence proposal for consistency with NRPA. This ommission limits the range of reasonable license conditions the Department may impose. * REMEDY SOUGHT* The Department include the Natural Resources Protection Act within its Statutory Criteria, and determine whether additional conditions are necessary to satisfy this law. * FINDING 4(C)* DEP/DFSC/CWP Meeting on November 9, 1994. * BASIS OF OBJECTION* This finding omits, in Paragraph 2, the DFSPS's expressed willingness at the November 9, 1994 meeting to include CWP's requested subtidal sediment and biomass testing conditions in their proposed investigation, provided that the two other terminals on Mack Point share the burden. The DFSPS proposal was reiterated in a 4/28/95 letter to CWP from Col. Michael Broderick, Director of Facilities Management for the Defense Fuel Support Center. * REMEDY SOUGHT* Include DFSC's willingness to accept CWP's conditions subject to cooperation from the other two fuel terminals at Mack Point in Finding 4(C). * * * CONCLUSIONS OBJECTED TO:* * Conclusion 7* Last sentence. "During the November 9 1994 meeting a proposal for limited sediment sampling was discussed." * BASIS OF OBJECTIONS 1.* In the DRAFT license, Conclusion 7 states that "During the November 9, 1994 meeting a proposal for limited sediment sampling by the DOD * was agreed to* ." Á ÁIn our letter of April 14, 1995, we disagreed with this language, based on our expressed requests during the November 9, 1994 meeting that the sampling proposal be created in draft form and distributed to us for comment prior to inclusion in the draft license. We did NOT agree that the limited sampling proposal submitted for consideration by DFSC was adequate. Á ÁDEP responded to our 4/14/95 letter by merely changing the language to: "During the November 9 meeting a proposal for limited sediment sampling * was discussed* .". This does not reflect our opposition at that time to any proposed sampling that does not include subtidal sediment and biomass testing. Verification of our oppposition at that time is important in understanding the consistency of our concern over the last 11 months. * 2.* This conclusion omits the DFSPS's expressed willingness at the November 9, 1994 meeting to include CWP's requested subtidal sediment and biomass testing conditions in their proposed investigation, provided that the two other terminals on Mack Point share the burden. The DFSPS proposal was reiterated in a 4/28/95 letter to CWP from Col. Michael Broderick, Director of Facilities Management for the Defense Fuel Support Center. * REMEDY SOUGHT* Modify the language of conclusion 7 to: 1. Note CWP's opposition at that time to any proposed sampling that does not include subtidal sediment and biomass testing. 2. Note that DFSPS is willing to accept CWP's conditions provided that the two other terminal operators share the burden. * * Conclusion 10* , paragraph 2, line 3, "DFSP stated that the CWP request for sampling in the pier area as a condition of the license renewal is an arbitrary request due to the fact that two other terminals operate in the immediate area, one uses the same pier as DFSPS and one operates a pier adjacent to DFSPS. * BASIS OF OBJECTIONS* The DFSPS has indicated a willingness to engage in a cooperative testing program. Paragraph 2 of Conclusion 10 is referring to a 4/28/95 letter to CWP from Col. Michael Broderick, Director of Facilities Management for the Defense Fuel Support Center. The letter also expressed a willingness on the part of DFSPS to include CWP's requested subtidal sediment and biomass testing conditions in their proposed investigation, provided that the two other terminals on Mack Point share the burden. If the Department accepts the DFSPS argument that testing would be arbitrary and declines to include such testing as a condition of the license, then neither the Defense Fuels Supply Center nor the other two terminal operators at Mack Point could ever be required to determine whether they have contaminated the seafloor around Mack Point. Each could seperately claim that requiring testing would be arbitrary. This would violate the Natural Resource Protection Act requirements that the DEP refain from allowing unreasonable harm to significant estuarine fisheries. * REMEDY SOUGHTInclude DFSC's willingness to accept CWP's conditions subject to cooperation from the other two fuel terminals at Mack Point in Conclusion 10. Require the DEP to conclude that testing is essential under the Natural resources Protection Act. CONDITIONS OBJECTED TO * CONDITION 4. Detailed Work Plan for environmental sampling. * BASIS OF OBJECTION The work plan unreasonably limits required soil, sediment and water sampling to the following locations: Drainage ditch leading to Culvert # 2. Beach area below Culvert # 2. Drainage ditch below licensed stormwater outfall # 1. Surface water samples from permitted stormwater outfall. In restricting the soil/sediment/water sampling plan to the above list, the Department uncritically and unreasonably accepted DFSP's assertion of immunity from CWP's proposed testing requirements because such requirements would be "arbitrary" : In the Public Notification section of the License (Section 4©D) the statement is made that, "On April 28th, 1995 DFSPS notified the CWP and the Dept that it is willing to perform their proposed investigation in the area of the 1971 spill. However they stated that placing a condition requiring sampling of sediment and biomass monitoring of the pier area was arbitrary due to the fact that two other licensed facilities operate from the same area. One shares a pier with DFSPS and another is located at an adjacent pier on Long Cove." Conclusion 10, paragraph two of the license states: On April 28, 1995 DFSPS re©stated their proposal of conducting a limited environmental study in the area of the 1971 fuel discharge as proposed during the November 9, meeting. DFSPS stated that the CWP request for sampling in the pier area as a condition of their license renewal is an arbitrary request due to the fact that two other terminals operate in the immediate area, one uses the same pier as DFSPS, and one operates a pier adjacent to DFSPS." If the DEP accepts these statements, neither the DFSP nor the other two licensed facilities at Mack Point, Searsport, can ever be made responsible for testing and monitoring of the impacts of their operations on the waters and sediments directly adjacent to Mack Point. With different licensing schedules, each facility can claim such a testing requirement would be arbitrary. This makes it impossible to enforce the Coastal Conveyance of Petroleum Act 38 MRSA 541©560, 345©349) This law requires immediate response to reports of prohibited or unexplained discharges of oil, for removal of prohibited discharges,and provides for restoration of any area affected by violation of any provision of the law or any license or permit, and is also in contravention of the Coastal Zone Management Act which stipulates that federal activities affecting the coastal zone shall be, to the maximum extent practicable, consistent with the Natural Resource Protection Act, which requires the department to avoid unreasonable harm to estuarine fisheries through its actions. * CONDITION & OBJECTIONS continued. Concern over unreasonable harm is based on the following: * DEP's 12/9/94 inspection of Defense Fuel Support Point Searsport (DFSPS) facilities found pressure test failures of the product transfer lines at the facility's pier. This leads us to believe there is a very significant possibility that dockside leakage from the fuel transfer hoses and elsewhere has occurred. *In a 4/28/95 letter to the Coastal Waters Project referring to this test, Col. Michael D. Broderick, Director of Facilities Management for the Defense Fuel Supply Center, wrote that "A failed pressure test suggests further investigation is warranted." * Sediment studies carried out in 1985 by Bigelow Laboratory for Ocean Sciences suggest the possibility of significant concentrations of petroleum contamination in the sediments surrounding Mack Point. * Studies carried out by the Environmental Conservation Division of the National Marine Fisheries Service show that petrochemical contamination of fish and shellfish "can adversely affect reproduction and thus can limit population size." Their research shows that petroleum contaminants causes failure of egg development, interference with the timing of spawning, a high percentage of deformed young, and liver tumors in adult fish and shellfish in New England waters and elsewhere. * The newly released draft Supplemental Environmental Impact Statement for the nearby proposed Sears Island Cargoport found that clams seeded in Stockton Harbor in 1988 as part of a mitigation package for a previous action have failed to survive in marketable numbers. (This information has only recently bvecome available. On the basis of this information, the DEP decision to exclude testing and monitoring of waters and sediments adjacent to the site from the license conditions is resulting in unreasonable harm to estuarine and marine fisheries, in violation of the Natural Resources Protection Act. In addition, as the 5 year licensing periods for the three fuel terminal operators on Mack Point do not expire concurrently, each operator can say it is unreasonable to test the sediment, relieving all three terminal operators of responsibilities under the Coastal Conveyance of Petroleum Act. * REMEDIES SOUGHT 1. Condition 4 be amended as follows: (amendment is underlined) CONDITION 4. Within sixty days of the signing date of this license, DFSC shall propose a detailed work plan for the soil/sediment. water sampling plan described in section 4c of this Order. This plan must include: A. The number and locations of proposed sediment samples from the seafloor surrounding the facility's fuel transfer area and offshore of culvert # 2. B. The number and locations of proposed biomass monitoring sites on the seafloor surrounding the facility. [Existing Conditions A through G to be retitled as Conditions C through I, (Condition A as Condition C; Condition B as Condition ; Condition C as Condition E; et seq.)] 2. Existing Conditions 5 through 8 to be renumbered Conditions 6 through 9. A new Condition 5 be added as follows: * CONDITION 5. Within 60 days of this signing, DFSPS will propose, in cooperation with the Department of Environmental Protection, Irving Oil Corporation and Sprague Energy Co, a joint state/federal/private industry testing and monitoring plan for the sediments and water column surrounding the terminal and its product transfer lines in Penobscot Bay.* Ô    0*0*0*°° Ô Ã ÃAttachments *Copy of DOD sampling proposal *CWP letters to MDEP dates: 9/10/94, 9/21/94, 10/28/94 4/14/95, 4/20/95 *CWP proposed amendments submitted 5/4/95 *Letter to Defense Fuel SUpply Center 5/5/05 from C. Stevens *CWP letters to Irving Oil Co and Sprague Energy Fuels 5/18/95 *Letter from Defense Fuel Supply Center to CWP 4/28/95 *Letter From Defense Fuel Supply Center to C. Stevens 5/24/95 *Site Map *Excerpt from Natural Resources Protection Act *Article The Distribution of Polycyclic Armomatic Hydrocarbons in the Surfician Sediments of Penobscot Bay, Maine, by Johnson and Larsen. *Excerpt from Draft SEIS Searsi Island Cargo Port Proposal *Article 'Chemical Contaminants and their effects on living marine resources', by Usha Varanasi, National Marine Fisheries Service *Map showing concentration of petroleum hydrocarbons in the Sediments of Long Cove, Searsport, Undated. *Chart from Natural Resources Defense Council reviewing the extent of toxics contamination in Maine Estuarine waters.Ô  0  0*0*0*°° Ô Ä Ä Ã ÃÄ Ä * * faxed to BDN, NF, CFN, AP MPR, MT, RJ WI,R:NW WBYA, II, IILT FOR IMMEDIATE RELEASEƒ july 7, 1995 Contact: Ron Huber 596©7693 FISHERY ADVOCATES APPEAL RELICENSING OF MILITARY TANK FARM ON PENOBSCOT BAY. AUGUSTA, Maine. Fishery advocates have delivered an appeal to the Maine Board of Environmental Protection, calling on the state to reverse its decision to exempt a military tankfarm on Penobscot Bay from water pollution testing requirements. "The Defense Fuel Support Point facility at Searsport has a documented record of problems," said Charlie Stevens, a Penobscot Bay shellfish harvester and mariculturist. "It's ridiculous that instead of protecting Maine's fishing industry, the state is shielding the federal government from having to check out how much jetfuel they've leaked into the bay! That's why we're asking the Board of Environmental Protection to make them test." Stevens and the other advocates disagree with Pentagon claims that testing for jetfuel spills as a condition of their operating license renewal is unfair because two private companies, Irving Oil and Sprague Energy, also move oil through the Mack Point complex. According to defense department officials, this would make it impossible to prove which of the three was responsible for any contaminated shellfish or sediments found. "This is a shell game," said Stevens. "When the state renews licenses for Irving Oil and Sprague Energy, they'll both say the same thing. That way all three can pass the buck. Its commercial fishermen like me that end up suffering while three big oil importers get off scot free!" Ron Huber, director of the Coastal Waters Project, which organized the appeal, said if that is the case, the DEP should require all three terminal users to participate in a joint pollution testing project, instead of exempting them. "Science is very clear that petroleum spilled or leaked into bays reduces fish and shellfish spawning success," Huber said. "Exempting the second largest oil terminal in Maine from testing the waters and bottom sediments directly surrounding it for petroleum contamination is irresponsible. DEP has a duty under state law to protect the commercial fisheries of Penobscot Bay rom pollution threats. But they're taking a heads©in©the©sand approach: if they don't check, they won't have to enforce the law. We hope to convince the Board of Environmental Protection that this is not reasonable." Huber said they have requested a public hearing on their challenge. "We are looking forward to hearing the DEP try explain its "ignorance is bliss" position." The Coastal Waters Project is a citizens' network dedicated to the protection of Maine's fish and shellfish habitat. The Defense Department to test the waters around their Searsport terminal for pollution because two private businesses also use the docks. "As a commercial fisherman and mariculturist, I'm quite concerned with the government's response with regard to pollution testing at the Searsport jetfuel facility. Isn't it to everyone's best interest that data be presented to the Maine Department of Environmental Protection and the people of the state of Maine with regards to what is actually there?" notes notes notes notesƒ takes issue with the state's decision to exempt the aging 33 million gallon capacity Defense Fuel Support terminal and tank farm at Mack Point in Searsport from a proposed licensing requirement to test shellfish and sediments in Bottom line is that one acre of Long Cove is capable of generating between 20 and 35 thousand dollars per year. That reflects $3,000,000 per year as an available tax base to help support such archaic endeavors such as the military of which I am a member, being a disabled veteran. We this it is unspeakable that the Department of Environmental Protection is refusing to help organize a joint public/private fishermen organize a Defense Department, Irving Oil and Sprague Energy Fuels organize a joint test of the water and bottom sediments surrounding the Defense Fuel Supply Port at Mack Point in Searsport." Said Ron Huber and the local community extremely disappointing . They are aware of the documented history of "We've tried to meet them halfway," said Charlie Stevens, a commercial fisherman who joined in the appeal. "DEP is being completely irresponsible in refusing to include water pollution testing requirements as conditions in the Defense