Tulane Environmental Law Clinic

September 14, 2013 CERTIFIED U.S. MAIL and email (Stephen.chustz@la.gov) Stephen Chustz, Secretary State of Louisiana Department of Natural Resources Office of the Secretary Post Office Box 44487 Baton Rouge, LA 70804-4487 Attn: Mr. Stephen Chustz RE:

Ref: 177-002

Petition for Reconsideration of RAM Terminals, LLCs Coastal Use Permit

Dear Mr. Chustz, Pursuant to Section 49:214.35(B) of Louisianas State and Local Coastal Resources Management Act, the Christian Ministers Missionary Baptist Association of Plaquemines, Inc., Ms. Joyce Cornin, Ms. Velma Davis, the Sierra Club Delta Chapter, the Gulf Restoration Network, the Louisiana Environmental Action Network, and Public Citizen (Petitioners) petition the Secretary of the Louisiana Department of Natural Resources (LDNR) to reconsider the final permit decision referenced in the September 4, 2013 email from Monica Dandurand (Dandurand email) notifying Petitioners of DNRs decision to issue Coastal Use Permit 20120190 (CUP) to RAM Terminals, LLC (RAM). LDNRs decision to issue RAMs CUP should be reconsidered for the following reasons: 1. Because LDNR did not adequately analyze alternative sites, LDNR cannot assess whether there are feasible and practicable alternative locations, methods, and practices for use that are in compliance with the modified standard under the Coastal Use Permit regulations. This decision is clearly contrary to the law and evidence before the Secretary pursuant to LSA-R.S. 49:214.35(B)(1). 2. Because RAMs proposed coal and petroleum coke terminal and export facility will severely impact wetlands and the $300,000,000 Myrtle Grove with Dedicated Dredging Ecosystem Restoration Project (the diversion), it directly conflicts with Louisianas Comprehensive Master Plan for a Sustainable Coast (Master Plan), Executive Order No. BJ 2008-07 issued by Governor Jindal, and several aspects of the factors set forth in La. Admin Code. tit. 43, pt. I, 701. These determinations are clearly contrary to the law
Tulane Environmental Law Clinic 6329 Freret St., Ste. 130, New Orleans, LA 70118-6231 tel 504.865.5789 fax 504.862.8721 www.tulane.edu/~telc

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 2 of 15 and the evidence before the Secretary with regards to the diversion. See August 30, 2013 Analysis of the Basis of Decision letter from Karl Morgan (Analysis letter). 3. LDNR asserts that permit conditions requiring RAM to cover the conveyor belt transporting coal and petroleum coke from the storage piles onto the barges will be sufficient to prevent the unpermitted discharge of coal and petroleum coke into the Mississippi River. These permit conditions are not part of the coastal use permit, and there is no guarantee that these or more stringent pollution control measures will be imposed on RAM in any of the other permits that the facility is required to obtain. LDNR cannot rely on permit conditions that have not yet been imposed. Additionally, this assumption is clearly contrary to evidence presented to the Secretary by Petitioners and others of coal and petroleum coke being illegally discharged into the river by similar facilities in the area. 4. LDNRs determination that the economic benefits of the proposed coal facility will outweigh the environmental harm it will cause is contrary to the evidence before the Secretary. 5. LDNRs determination that RAMs proposed coal terminal will not contribute to health pollution risks to the community of Ironton, a community already severely impacted by particulate matter and soil and water contamination, is clearly contrary to the evidence before the Secretary. 6. LDNRs determination that La. Admin Code. Title 43, Section 715 is not applicable to RAMs proposed facility is clearly contrary to the law and the evidence before the Secretary. Because RAMs proposed coal terminal will contain solid coal and petroleum coke wastes as a by-product of storing coal and petroleum coke, including settled coal and petroleum coke particulates, it is subject to La. Admin Code. Title 43, Section 715(A) and does not meet the feasible alternatives standard. 7. LDNRs determination that La. Admin Code. Title 43, Section 707(B) does not apply to RAMs proposed facility is clearly contrary to the law and the evidence before the Secretary. Because RAMs coal terminal facility will abut the planned diversion and the proposed facility includes ship and barge docks on the Mississippi River, it is subject to the Guidelines for Shoreline Modification. 8. LDNRs determination that there is no increase in potential flooding of RAMs site due to hurricanes and other storm events is clearly contrary to the evidence before the Secretary. RAMs proposed coal terminal site is vulnerable to storm-surge flooding and rain flood risks and if completed, the proposed facility will increase the likelihood that damage will occur from such hazards.

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 3 of 15 9. LDNR failed to release to the public and to adequately consider bathymetric, feasibility or impact studies even though it apparently required RAM Terminals to produce such studies. Analysis I. Because LDNR did not adequately analyze alternative sites, LDNR cannot assess whether there are feasible and practicable alternative locations, methods, and practices for use that are in compliance with the modified standard under the Coastal Use Permit regulations. This decision is clearly contrary to the law and evidence before the Secretary pursuant to LSA-R.S. 49:214.35(B)(1).

The LDNR has the authority to review and issue CUPs for anyone seeking to build a project that will significantly impact coastal waters pursuant to the State and Local Coastal Resources Management Act. La. R.S. 49:214.22(1). As a public trustee deciding whether to grant approval of a proposed action affecting the environment, LDNR must determine that adverse environmental impacts have been minimized or avoided as much as possible consistently with the public welfare. Save Ourselves, Inc. v. LA. Env. Control Comm., 452 So.2d 1152, 1157. To ensure the fulfillment of the public trustee doctrine the DNR must analyze whether there are alternative sites that would offer more protection to the environment. In the permit application, RAM presented no alternative site analysis either within or outside the boundaries of Plaquemines Parish. LDNR cannot uphold its legal obligation to analyze alternative sites that may offer more environmental protection when the permit applicant presents no alternatives. The Louisiana First Circuit held in In re Rubicon, Inc. that LDEQ, a similar agency with the responsibilities of a public trustee, must consider whether there are alternative projects or alternative sites or mitigating measures that would offer more protection to the environment than the proposed project without unduly curtailing non-environmental benefits to the extent applicable. Rubicon, 670 So.2d 475, 483 (La. App. 1 Cir.1996). And in In re Am. Waste and Pollution Control Co., the court held that it would have been difficult or nearly impossible to consider the environmental effects in a cost-benefit analysis where LDEQ examined no information on solid waste facility sites outside the tri-parish area. 633 So.2d 188, 195 (La. App. 1 Cir.1993). The court reasoned that where the applicant limits too narrowly the geographic area it searches for alternative sites, LDEQ cannot conduct a proper evaluation of alternative sites to determine comparative environmental impact. Id. Similarly, in In re Browning-Ferris Industries, the Louisiana First Circuit found that the applicant-facility would provide services to others far outside the boundaries of the parish, and therefore it was likely that an alternative site could be found outside the parish boundaries that would serve the area while providing greater protection to the environment. Browning-Ferris, 657 So.2d 633, 638 (La. App. 1 Cir. 1995).

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 4 of 15

Like the permit applicant in American Waste, RAM only considered the proposed location and did not provide an alternative site analysis for the public trustee agency to consider. The alternative analysis is geographically limited, and as a result, LDNR did not analyze alternative sites that may be less harmful to the environment. In addition, like the permit applicant in Browning-Ferris, RAM will provide services to others far outside the boundaries of Plaquemines Parish by importing coal from other states and shipping internationally. RAM should have conducted a broad, multi-parish analysis, but RAM did not consider any sites other than the proposed facility. Additionally, LDNR asserts that the criteria for siting on a deep water port with rail access limits the number of feasible sites available. Analysis letter at 3. RAM made statements at the public hearings indicating to the public that the rail line is not integral to its operation, thus LDNRs determination limiting alternative site analysis to locations with both rail and deep water port access is clearly contrary to the evidence before the Secretary. Consequently, for the above reasons, LDNR did not conduct a proper evaluation of alternative sites, its review is incomplete and clearly contrary to the law and the evidence before the Secretary.

II.

Because RAMs proposed coal terminal and export facility will severely impact wetlands and the $300,000,000 Myrtle Grove with Dedicated Dredging Ecosystem Restoration Project (the diversion), it directly conflicts with Louisianas Comprehensive Master Plan for a Sustainable Coast (Master Plan), Executive Order No. BJ 2008-07 issued by Governor Jindal, and several aspects of the factors set forth in La. Admin Code. tit. 43, pt. I, 701. These determinations are clearly contrary to the law and the evidence before the Secretary with regards to the diversion.

While evaluating a CUP application, the LDNR shall ensure that the activity for which the application is being made is consistent with the states master plan for integrated coastal protection. No activity which is not consistent with the plan shall be granted a coastal use permit. La. R.S. 49:214.30 (A)(2). Furthermore, the LDNR must also conduct an appropriate balancing of social, environmental and economic factors in deciding whether to grant a CUP. La. R.S. 49:214.30(C)(3). The balancing of social, environmental, and economic factors clearly does not weigh in favor of the RAM Terminal. The proposed coal facility will be located directly adjacent to the diversion project. The CPRA considers the diversion project to be a solution to the following problems affecting coastal Louisiana: 1. Decreased fresh water, sediment and nutrient inputs;

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 5 of 15 2. 3. 4. 5. 6. Hydrologic modifications; Saltwater intrusion; Wetland loss; Bank erosion; and Altered circulation and water quality.

Moreover, the diversions long-term goals are to restore and enhance nearly 20,000 acres of wetlands that have been eroding over the years. The states Comprehensive Plan notes these wetlands are essential to contributing to a sustainable ecosystem and reliable flood protection. In addition, Louisiana Governor Bobby Jindal issued Executive Order No. BJ 08-7 in conjunction with the states approved Master Plan. This Executive Order requires that all state agencies: Administer their regulatory practices, programs, contracts, grants, and all other functions vested in them in a manner consistent with the Master Plan and public interest to the maximum extent practicable.1 The Master Plan emphasizes the importance of wetlands as a fundamental part of the hurricane protection system and states that wetlands within the hurricane protection system need to remain intact and undeveloped. Further, the Master Plan also requires minimization of impediments to water flow. The construction of the proposed facility in the path of this diversion project will result in adverse consequences to the effectiveness of the diversion project. The permanent structures associated with the terminal, including its docks, barge moorings, and conveyor system, at this point in the river will serve an impediment to the water diversions flow and circulation. Furthermore, barges and ships associated with the terminal and moored or docked there may collide with structures associated with the diversion particularly during storms and hurricanes. Additionally, the proposed coal facility has the potential to negatively impact the success of the diversion by polluting the water going into the wetlands. RAM Terminals, LLC plans to export up to 10 million tons of coal and/or petroleum coke each year, which will be stored in uncovered piles on the facility and will be loaded and unloaded using uncovered conveyors. According to EPA documents, coal and petroleum coke pile runoff may contain high concentrations of copper, mercury, iron, nickel and other toxic constituents. At similar coal terminals along the lower Mississippi River, coal and petroleum coke dust and chunks are routinely deposited into the surrounding water bodies and environment as solid particles are blown off coal and petroleum coke piles or conveyors, coal and petroleum coke is spilled during loading and unloading, and coal and petroleum coke sticks to conveyor belts and falls into the surrounding water. Evidence of such discharges was presented to LDNR in comments submitted by Petitioners.

Governor Bobby Jindal, Exec. Order No. BJ 2008-07, (Jan. 23, 2008).

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 6 of 15 The mere presence of coal dust has been shown to cause ecological harm. In South Africa, for example, a 2004 study found that coal dust from the Richards Bay Coal Terminal found that coal harms local mangrove trees and related ecosystems by impairing the ability of the trees to photosynthesize. The researchers noted: [coal] dust on the undersurface of leaves is not removed by wind, rain, or even physical washing. The undersurface of the leaves, as well as the rough surfaces of twigs, branches and trunk, tend to accumulate dust and appear black.2 A 2006 study in British Columbia found that the steady accumulation of coal sediment on the sea floor could harm the flora and fauna living on the sea bottom, as oxidizing coal particles reduce the oxygen available.3 The Lower Mississippi River already suffers from low dissolved oxygen; further impairment will be disastrous for the ecosystem, including the diversions ecosystem. Coal and petroleum coke sediment can be especially damaging to marsh and wetland plants, as coal and petroleum coke wastes contain sulfides that can hamper the metabolism of the roots of marsh plants. These roots are essential for the shear strength of the marsh, and the success of the Sediment Diversion depends on the health of the newly restored grasses and other marsh plants, which will protect the fragile wetlands from storm surges. The RAM Terminal is therefore inconsistent with the state master plan, as it will deposit toxic coal and petroleum coke sediment directly into the Sediment Diversion and hamper the restoration process. Several of LDNRs determinations regarding the factors set forth in La. Admin Code. tit. 43, pt. I, 701(G) are clearly contrary to the law and/or the evidence before the Secretary. LDNR outright dismissed factors 15 through 19 claiming that there are no anticipated impacts to highly productive wetlands. Analysis letter at 7. For LDNR to label the wetlands that will be created by the diversion as not highly productive is already contrary to the evidence before the Secretary. Furthermore, the requirement that the impacts be to highly productive wetlands is only applicable to factor 15, rendering LDNRs dismissal of factors 16-19 clearly contrary to the law. Factor 16 requires agencies to consider the adverse alteration or destruction of valuable habitats. La. Admin Code. tit. 43, pt. I, 701(G)(16). If the wetlands the $300,000,000 diversion will create are not valuable, it is unclear what the regulation could possibly apply to. Additionally, factor 17 requires agencies to consider adverse alteration or destruction of public works or other areas of public use and concern. La. Admin Code. tit. 43, pt. I, 701(G)(17). The diversion is a massive public works project and certainly an area of public concern. For LDNR to dismiss this and other factors as inapplicable, with no analysis whatsoever, is clearly contrary to the law and the evidence before the Secretary.

G. Naidoo, D. Chirkoot. The effects of coal dust on photosynthetic performance of the mangrove, Avicennia marina in Richards Bay, South Africa, Environmental Pollution, vol. 127, issue 3, Feb. 2004, pages 359-366. 3 Ryan Johnson and R.M. Bustin, Coal dust dispersal around a marine coal terminal (19771999), British Columbia: The fate of coal dust in the marine environment. International Journal of Coal Geology, vol. 68, issue 1-2, 1 Aug. 2006, pages 57-69.

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 7 of 15

III.

LDNR asserts that permit conditions requiring RAM to cover the conveyor belt transporting coal and petroleum coke from the storage piles onto the barges will be sufficient to prevent the unpermitted discharge solid particles into the Mississippi River. This assumption is clearly contrary to evidence presented to the Secretary by Petitioners and others of coal and petroleum coke being illegally discharged into the river by similar facilities in the area.

Like the other facilities located near the proposed RAM site, RAM will transport coal and petroleum coke via a conveyor belt system from barges to giant piles on their property, and then onto ocean-going vessels on the Mississippi River. Coal and petroleum coke easily blows and falls into the river at various points of this transfer process. Also, coal and petroleum coke barges drain solid particles and dust into the Mississippi River when they wash. Additionally, coal and petroleum coke left on the conveyor as it loops under itself falls into the river. These practices result in extensive coal and petroleum coke pollution in the Mississippi River, as shown in aerial photographs presented to LDNR is comments by Petitioners and others. LDNR asserts that permit conditions requiring RAM to cover the conveyor belt transporting coal and petroleum from the storage piles onto the barges will be sufficient to prevent the unpermitted discharges into the Mississippi River. There is no information available to Petitioners to suggest that the conveyor system will be entirely covered, both above and below, to prevent coal and petroleum coke from contaminating the River. Additionally, covering the conveyor will prove to be insufficient as coal and petroleum coke will still be discharged into the river when it falls from the conveyor as it loops back under itself. RAMs failure to prevent coal and petroleum coke from polluting the Mississippi River will result in illegal discharges under Clean Water Act sections 301(a) and 402(a). See 33 U.S.C. 1311(a), 1342(a) which the State of Louisiana must strictly enforce. In fact, LDNR has not included this supposed permit condition in the coastal use permit, and is instead relying upon its sister agencies to impose appropriate emissions controls to prevent offsite emissions. Analysis letter at 8. However, RAM has only acquired two permits for the proposed coal facility to date (a state level air permit and a coastal use permit), and neither of those permits has imposed any conditions on the design, construction, or operation of the facility to control offsite emissions. LDNR, thus, may not rely on conditions that it hopes that someone else, someday in the future, will impose on RAM for its conclusions regarding the environmental impacts of this development. Furthermore, under La. Admin. Code. tit. 43, pt. I, Section 717, upstream water management programs that affect coastal waters and wetlands shall be designed and constructed to preserve or enhance existing water quality, volume, and rate of flow to the maximum extent practicable. RAM did not address this issue in its permit application, nor has LDNR adequately conditioned the permit to ensure RAM will operate its proposed coal terminal facility differently from other nearby coal facilities, so LDNR can in no way prevent RAMs coal and petroleum coke from entering the Mississippi River and the surrounding waters and wetlands. Even if the

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 8 of 15 conveyors are covered a condition that is guaranteed neither in RAMs application nor the LDNR permit conditions such covers will not prevent all unpermitted discharges, and therefore the LDNRs determination is contrary to the evidence before the Secretary.

IV.

LDNRs determination that the economic benefits of the proposed coal facility will outweigh the environmental harm it will cause is contrary to the evidence before the Secretary.

LDNR asserts that RAMs project will extend benefits to Plaquemines Parish and the State of Louisiana, but does not provide support. In fact, LDNRs statement that the market for seaborne coal in Asia remains strong4 is directly contrary to current market conditions and financial forecasts for the future of exported coal as Petitioners showed in their comments. Indeed, [t]he ailing American coal industry, which has pinned its hopes on exports to counter a declining market at home, is scaling back its ambitions as demand from abroad starts to ebb as well already.5 According to Armstrong Energy, RAM Terminals parent/affiliate company: International demand for U.S. coal also affects competition within our industry. The demand for U.S. coal exports depends upon a number of factors outside our control, including the overall demand in foreign markets, currency exchange rates, ocean freight rates, port and shipping capacity, the demand for foreign priced steel both in foreign markets and in the U.S. market, general economic conditions in foreign countries, technological developments and environmental and other governmental regulations in both the U.S. and foreign markets. Foreign demand for U.S. coal has increased in recent periods. If foreign demand for U.S. coal were to decline, this decline could cause competition among coal producers in the United States to intensify, potentially resulting in significant downward pressure on domestic coal prices.6 Several of these critical factors undermine the financial strength of RAMs proposed expansion. Most significantly, the Chinese government has announced tighter lending policies and

Analysis letter at 3. U.S. Coal Companies Scale Back Export Goals, Clifford Krauss, THE NEW YORK TIMES, Business Day (Sept. 13, 2013), http://www.nytimes.com/2013/09/14/business/energyenvironment/us-coal-companies-scale-back-export-goals.html?_r=0. 6 Armstrong Energy, Form S1, 16-17 (March 7, 2012).
5

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 9 of 15 anticipates an increasing number of defaults in their own coal markets.7 Additionally, the Chinese government has announced plans to reduce coal plant emissions.8 Indeed, just this Thursday, China announced a ban on construction of new coal-fired plants around Beijing, Shanghai and Guangzhou to control air pollution. The plan will shift new power plant construction to natural gas, nuclear and solar power.9 Such clean air initiatives, along with slowing Chinese economic growth, have undercut expectations for rising imports and helped produce an overabundance that has sent world coal prices plummeting by more than 30 percent from last year. In response, international coal companies are scaling back mining and shelving export projects from Australia to the Gulf of Mexico, especially for thermal coal used to produce electricity.10 A slowdown in Chinas use of coal diminishes the chances that more U.S. coal can enter the seaborne coal markets.11 Financial analysts have recently recognized that there has been a sharp decline in the international price of thermal coal, and that this decline reflects fundamental changes to the international coal market that will lead to lower profits and increased competition. In fact, Citi Research recently released a report stating it expects Chinas coal market to flatten or peak by 2020.12 Goldman Sachs has also released reports that strongly question the profitability of coal export operations in the near future.13

Kalayan Teodoro, Chinese banks tighten lending to coal traders due to default concerns, SNL COAL (September 27, 2012). 8 Xin Zhou, Beijing Acts to Reduce Fireworks as Air Worsens, China News Says, BLOOMBERG NEWS (February 24, 2013), available at http://www.bloomberg.com/news/2013-02-24/beijingacts-to-reduce-fireworks-as-air-worsens-china-news-says.html. 9 U.S. Coal Companies Scale Back Export Goals, Clifford Krauss, THE NEW YORK TIMES, Business Day (Sept. 13, 2013), http://www.nytimes.com/2013/09/14/business/energyenvironment/us-coal-companies-scale-back-export-goals.html?_r=0. 10 Id. 11 See Darren Epps, U.S. coal exports down 9% in August as India goes nearly silent, SNL COAL (October 17, 2012). For extended discussion of global coal demand in the context of world energy markets see: International Energy Agency (IEA), Golden Rules for a Golden Age of Gas, (May 29, 2012), available at http://www.worldenergyoutlook.org/goldenrules/. 12 See The Unimaginable: Peak Coal in China, CITI RESEARCH (Sept. 4, 2013), available at https://ir.citi.com/Stak2GDMg%2F6ptgj2CHXicr7Lurxzvhvwi8xvfURG069IbxgG4Y atmQ%3D%3D. 13 See Hal Bernton and Brian M. Rosenthal, Demand Cools as Fight Rages Over Coal Export Terminals, THE SEATTLE TIMES (September 3, 2013), available at http://seattletimes.com/html/localnews/2021747781_coalexportmarketsxml.html.

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 10 of 15 LDNR admits that the domestic demand for coal is declining. See Analysis letter at 3. Because of this fact, the benefits of the RAM terminal will be realized primarily by foreign consumers, coal companies and RAM itself, while the negative impacts will exclusively burden the local community and environment. Therefore, LDNRs determination that the benefits outweigh the environmental costs is contrary to the evidence before the Secretary. Furthermore, as Petitioners raised in their comments, whether RAMs project succeeds or fails, there are financial risks for the state. If RAM is successful and can find markets for expanded coal exports, rising exports of U.S. coal are likely to increase costs of Louisianas electricity. An example from Colorado illustrates the point.14 In 2010, Public Service Company of Colorado estimated Colorado coal prices would decline by approximately 20% from 2012 to 2018, due to diminished demand for coal in Colorado. This scenario supported the utilitys request that the states ratepayers underwrite a coal plant retrofit. But Peabody Energy, the owner of the mine that will service the coal plant, took steps to increase exports from the same mine. As a result, the price shot above the 2010 estimate and the actual contract prices negotiated by Public Service of Colorado by 13% in the first year, and will grow to 68% by 2018. The actual market conditions faced by Public Service Company of Colorado demonstrate that prices rise for domestic utilities when coal producers choose export strategies to bolster their share value and competition is limited. Approximately one-fourth of Louisianas power is currently generated by coal.15 With upward electricity price pressure exacerbated by coal exports from Louisiana, the states competitive advantage as a low cost energy state will likely erode. On the other hand, if RAMs project fails to produce sufficient contract throughput from global coal demand, Plaquemines Parish and the state of Louisiana will not enjoy the projected employment and economic benefits of the project. When the City of Los Angeles and Peabody Energy attempted to develop a coal export facility at the Port of Los Angeles in the 1990s, the project failed. Global coal markets proved too volatile to support the original assumptions accepted by the city and private investors. Los Angeles lost revenue and was ultimately sued and settled out of court for a reported $4 million.16

Susan Arigoni, Vice President Fuels, Public Service Company of Colorado, Direct Testimony and Exhibits on Behalf of Public Service Company of Colorado, Public Utilities Commission of the State of Colorado, Docket No. 11A917E (November 2011). 15 Energy Information Administration, Louisiana, State Profile and Energy Estimates, http://www.eia.gov/beta/state/analysis.cfm?sid=LA (last visited Feb 26, 2013). 16 Patrick McGreevy, LA weighs costly exit from coal terminal, LA Times, June 14, 2003. See also: Patrick McGreevy, City Hit with $4 million over rejected port project, LA Times, June 11, 2004.

14

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 11 of 15 Furthermore, the economic benefits of this proposed coal facility are even more dubious than a typical coal operation. There is great uncertainty with how effective the operation will be, in particular with the loading and unloading of barge and ocean going vessels, if there is a large diversion project next door, if the two facilities directly downstream expand as planned, and the competing upstream Burnside project expands as planned. LDNRs determination that the proposed project will provide financial benefits that will outweigh the environmental risks is contrary to the evidence before the Secretary and should be reconsidered.

V.

LDNRs determination that RAMs proposed coal terminal will not contribute to health pollution risks to the community of Ironton, a community already severely impacted by such health impacts, including particulate matter and soil and water contamination is clearly contrary to the evidence before the Secretary.

As part of the settlement agreement to a nuisance suit brought by local residents against the IMT coal export facility just downstream of the proposed RAM facility, the IMT coal facility agreed to install a water spray system and other mitigation measures. Joseph Chedotall v. Kinder Morgan Energy Partners LP, No. 56-076, section "B" (25th JDC). But apparently, long after this agreement was reached, IMT has not yet installed these measures. The nearby communities of Ironton and Wood Park have elevated numbers of cases of childhood asthma and adult bronchitis. Susan Buchanan, Plaquemines residents worry about nearby coal terminals, THE LOUISIANA WEEKLY (Oct. 1, 2012), available at http://www.louisianaweekly.com/ plaquemines-residents-worry-about-nearby-coal-terminals/. Coal plumes extend over residential areas in Plaquemines Parish, particularly on days with winds over 20 mph, as shown in a photo of the IMT facility provided by Petitioners in their comments The community health impacts of particulate matter are well known. For example, Whatcom Docs, a group of more than 180 physicians who live in Whatcom County in Washington state, released a research paper that identifies major areas of health impacts from coal terminals. Letter from Whatcom Docs for Executive Louws and Director Sturdevant (March 12, 2012), attached as Exhibit 3. The research paper concludes that pulmonary, cardiac, cancer and safety risks would increase for nearby communities, with children and the elderly at highest risk. Furthermore, the Whatcom Docs found that exposure to coal dust and the toxic heavy metals coal contains, such as mercury, arsenic and lead, are linked to cancer, birth defects, heart disease, and increased asthma and lung disease in children. RAMs proposed coal facility will place an increased burden on communities already suffering from elevated respiratory problems.

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 12 of 15

Furthermore, airborne coal dust will contaminate surrounding wetlands and the diversion, dumping these toxic heavy metals into a fragile and crucial environment. RAM must use best available technologies to stop airborne pollution in order to protect the surrounding wetlands, the diversion, and nearby residents. LDNR suggests that since Ironton is almost a mile from RAMs proposed site there will be little impact on the local community. Analysis letter at 7. LDNRs determination that almost a mile is distance enough to mitigate the problems mentioned above is clearly contrary to the evidence before the Secretary, and is completely unsupported by data or analysis. Additionally, LDNR is quick to point out that some of the activities that cause health pollution risks are regulated by other state agencies. See Analysis letter at 7. LDNR has an independent public trustee duty. Further, LDNR cannot know whether these other agencies will adequately protect coastal wetlands and coastal wetland communities. By neglecting the responsibility and passing the buck onto other agencies to deal with later, LDNR is putting the health of Ironton and other nearby communities at risk. Because RAMs proposed facility lacks the controls necessary to prevent harmful health pollution risks, LDNRs determination is clearly contrary to the evidence before the Secretary. VI. LDNRs determination that La. Admin Code. Title 43, Section 715 is not applicable to RAMs proposed facility is clearly contrary to the law and the evidence before the Secretary. Because RAMs proposed coal terminal will contain wastes as a byproduct of storing and transporting coal and petroleum coke, it is subject to La. Admin Code. Title 43, Section 715(A) and does not meet the feasible alternatives standard.

Operations at the RAM facility meet the definition of storing or transporting solid waste. Under La. Admin. Code tit. 43, pt. I, 715 directs, in pertinent part: A. The location and operation of waste storage, treatment, and disposal facilities shall be avoided in wetlands to the maximum extent practicable, and best practical techniques shall be used to minimize adverse impacts which may result from such use. C. Waste facilities located in wetlands shall be designed and built to withstand all expectable adverse conditions without releasing pollutants. E. The use of overland flow systems for nontoxic, biodegradable wastes, and the use of sump lagoons and reservoirs utilizing aquatic vegetation to remove pollutants and nutrients shall be encouraged.

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 13 of 15 G. Waste facilities in wetlands with identifiable pollution problems that are not feasible and practical to correct shall be closed and either removed or sealed, and shall be properly revegetated using the best practical techniques. Furthermore, under site La. Admin. Code tit. 43, pt. I, 701(H), RAM must demonstrate that: (1) no feasible and practical alternative locations, methods, and practices to the waste disposal facility in coastal wetlands exist, and (2) the benefits of using these wetlands for disposal would clearly outweigh the adverse impacts. LDNRs asserts that La. Admin. Code tit. 43, pt. I, 715 does not apply because RAM is not a waste disposal facility. Analysis letter at 14. But this section applies explicitly to facilities that store and/or transport solid waste which is precisely what RAM is in the business of doing. At the very least, any solid particles in the settling ponds, discharged into the river, or otherwise released or settled into the soil, water and surrounding wetlands would qualify as solid waste. Therefore, LDNRs determination that 715 is inapplicable is clearly contrary to the law.

VII.

LDNRs determination that La. Admin Code. Title 43, Section 707(B) does not apply to RAMs proposed facility is clearly contrary to the law and the evidence before the Secretary. Because RAMs coal terminal facility will abut the planned diversion and the proposed facility includes ship and barge docks on the Mississippi River, it is subject to the Guidelines for Shoreline Modification.

Under La. Admin. Code. tit. 43, pt I Section 709, shoreline modification structures should be designed and built using best practicable techniques to minimize adverse environmental impacts; docks specifically should be designed and built using best practical techniques to avoid obstruction of water circulation; and structures should be designed and constructed to avoid to the maximum extent practicable downstream land loss and erosion. The diversion project will result in changes to water circulation and the ship and barge docks will interfere with erosion by blocking sediment transfers to the Barataria Bay estuary. LNDR determined that La. Admin Code. Title 43, Section 707(B) does not apply without giving any further analysis. Analysis letter at 10. RAM proposes to build a massive facility directly on the river bank with moorings and docks. LDNRs determination that this is not a shoreline modification structure is clearly contrary to the law and evidence before the Secretary.

Mr. Stephen Chustz Petition for Reconsideration of RAM Terminal, LLCs Coastal Use Permit September 14, 2013 Page 14 of 15 VIII. LDNRs determination that there is no increase in potential flooding of RAMs site due to hurricanes and other storm events is clearly contrary to the evidence before the Secretary. RAMs proposed coal terminal site is vulnerable to storm-surge flooding and rain flood risks and if completed, the proposed facility will increase the likelihood that damage will occur from such hazards. When considering factor 20 of La. Admin Code. tit. 43, pt. I, 701(G), LDNR determined that there should be no increase in potential [for flooding] as the area is behind the hurricane protection system. Analysis letter at 7. This is troubling because IMTs nearby coal terminal is located behind the same protective system, United Bulk is located behind a similar protection system across the river, and both were inundated during Hurricane Isaac, flooding the surrounding environment with contaminated water, as detailed in the addendum attached to Petitioners comments. The permit does not address any storm-surge barriers or outline adequate storm plans. Storm surge presents high risks for pollution because floodwater can inundate the coal and petroleum coke piles, and then flow back into the surrounding environment through the breaches, carrying harmful contaminants including heavy metals such as arsenic, mercury, and lead. By completely dismissing the possibility that a hurricane could breach the protection system, despite numerous examples of such breaches from recent storm events, LDNRs determination is clearly contrary to the evidence before the Secretary. IX. LDNR failed to release to the public and to adequately consider bathymetric, feasibility or impact studies even though it apparently required RAM Terminals to produce such a report/s. LDNR required RAM terminals, in LDNRs 2012 draft permit conditions, to conduct a: full investigation and disclosure to the State of Louisiana of the following: a) Potential impacts of the RAM Terminals coal transfer facility, features and operations on river flow, sediment transport and availability within the vicinity of the intended diversion structure. This investigation should include a detailed 3D model of induced currents and sediment transport during diversion operation. b) Potential impacts of diversion construction and operations to the RAM Terminals facility, and a plan outlining the applicants commitment to address any required restrictions (design changes, altered facility operation schedule, maintenance schedule). But despite efforts to obtain copies of any such reports, including through public records requests, the petitioners have not been able to find any. LDNR has also apparently not considered these reports. If these reports do not exist, LDNR should not have considered the application complete and should not have issued the permit. If these reports do exist, they should