t..¡ •• ._ji BAKER WOTRING DEBRATSUCHIYAMABAKER MANAGINGPARTNER LLP DIRECT DIAL: (713) 980-1717 dbaker@bakerwotring.com September 13,2018 Via Federal eRulemaking Portal Rear Admiral Mark H. Buzby Administrator Maritime Administration 1200 New Jersey Avenue SE Washington D.C. 20590 Re: Rear Admiral John P. Nadeau Assistant Commandant for Prevention Policy (CG-5P) U.S. Coast Guard, Stop 7501 2703 Martin Luther King Jr. Ave., SE Washington, D.C. 20593-7501 Texas Gulf Terminals Project Federal Docket No. MARAD-2018-0114 Port of Corpus Christi Authority's Comments Dear Admiral Buzby and Admiral Nadeau: These comments are submitted on behalf of the Port of Corpus Christi Authority (the "Port") regarding Texas Gulf Terminals Inc.'s ("Texas Gulf Terminals") application for a deepwater port license (the "Application"). The Port's comments establish that the United States Maritime Administration ("MARAD") and the United States Coast Guard (the "Coast Guard") should deny the Application for numerous reasons. As a threshold issue, the Application must be denied because it does not meet the statutory requirements that must be included by law. Among other defects, discussed in more detail below, the Application circumvents the public's ability to provide meaningful public comment because it withholds large amounts of key information in violation of the statutory requirements and is incomplete. In addition to improperly designating key information as "confidential" so that it cannot be viewed by the public, the Application violates the legal requirement that Texas Gulf Terminals provide information to the public about its affiliates' criminal history - and the Application omits that criminal history. Most importantly, the Application cannot be approved unless it is found to be "in the national interest" and these comments demonstrate that the proposed deepwater port does not serve the national interest and is not in the best interests of the United States of America. Instead, it serves the interest of Texas Gulf Terminals and its foreign owners - a Swiss-based oil and gas trading firm - while creating unacceptable risks to the environment and the people of Texas. MARAD and the Coast Guard should deny the Application because: • The planned deep draft channel and harbor located at the Port of Corpus Christi better protects the environment and serves the national interest, and any new Port should, at a minimum, be required to meet the same well-established principles and protocols; 700 JPMORGAN CHASE TOWER 600 TRAVIS STREET HOUSTON. TEXAS 77002 (TEL) 713.980.1700 (FAX) 713.980.1701 tJ" .ji BAKER WOTRING llP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13, 2018 Page 2 of 19 • Texas Gulf Terminals' proposed deepwater port will be outside the reach of Texas regulators, increasing the potential for environmental disasters; • The Application is incomplete because it does not contain the statutorily required information regarding Texas Gulf Terminals' affiliates; • The Application is incomplete because it does not adequately address the impacts of the Texas Gulf Terminals project on threatened and endangered species, critical habitats and fish and wildlife resources; • The Application improperly designates large quantities of information as confidential, keeping it from public view; • The Application does not state whether the Deepwater Port will be open or closed, as required by the Regulations; • The Application contains unaudited financial statements, but it has not received the required waiver from the Commandant; • The Application does not adequately address the risks posed by the Deepwater Port, including the terrorism-related risks or the risk of a spill from a loaded VLCC; • Texas Gulf Terminals has not yet obtained many of the certifications and permits required to operate the Deepwater Port; and • Trafigura's Environmental Record Is Reason Enough to Reject the Application. For these reasons, MARAD and the Coast Guard should deny the Application. At a minimum, MARAD and the Coast Guard should suspend the Application until (1) Texas Gulf Terminals provides all information that the Application is statutorily required to contain, and (2) all information that is not truly confidential is disclosed to the public. • ...1" ._j, I. BAKER WOTRING LLP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13,2018 Page 3 of 19 The planned deep draft channel and harbor located at the Port of Corpus Christi better protects the environment and serves the national interest, and any new Port should, at a minimum, be required to meet the same well-established principles and protocols. Under the Deepwater Port Act of 1974, Texas Gulf Terminals' Application cannot be approved unless it is "in the national interest."¡ As explained below, Texas Gulf Terminals' proposed deepwater port does not serve the national interest. Instead, it serves the interest of Texas Gulf Terminals and its foreign owners, while creating unacceptable risks to the environmental and people of Texas. The national interest is best served by an onshore project located at the Port of Corpus Christi. As a local governmental entity bound by a directive to serve the public interest, the onshore project located at the Port of Corpus Christi inherently prioritizes the long-term interests of the public and the local and regional economies. The Port of Corpus Christi has a proven track record of environmental stewardship and operates in a safer and more secure environment. By comparison, the Texas Gulf Terminals deepwater port was designed primarily to serve the economic interests of its foreign parent company, which has been cited for serious environmental violations and proposes a system with serious safety and security concerns. A. Economically, an onshore project located at the Port of Corpus Christi best serves the national interest. An onshore project located at the Port of Corpus Christi will expand the existing Corpus Christi ship channel and has numerous economic advantages over the Texas Gulf Terminals deepwater port. The deepening of the ship channel will permit the Port of Corpus Christi to service multiple tenants and shipping lines, encouraging healthy competition, creating substantial job growth and raising tax revenue for Corpus Christi and the State of Texas. An onshore project located at the Port of Corpus Christi will provide the economic flexibility and require the additional jobs to support multiple cargoes and commodities. An onshore project located at the Port of Corpus Christi and associated improvements will also achieve the following: 1 • Provides an efficient use of capital to achieve growth and meet overall crude export forecast for the nation. • Promotes future growth within the Port under a single permitting process for deepening the channel. • Provides for measured expansion to meet growing long-term demand for crude exports. 33 U.S.C. § 1503(c)(3). 'J" ._j, BAKER WOTRING UP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13, 2018 Page 4 of 19 An onshore project located at the Port of Corpus Christi is expected to result in the addition of over 19,000 jobs and increase state tax revenues by over $9.2 million annually. If the Texas Gulf Terminals deepwater port is also completed, the economic impact of an onshore project located at the Port of Corpus Christi will drop significantly, with less than 12,000 jobs created and less than $6 million in increased annual tax revenues. Contrast these advantages with the economics of the Texas Gulf Terminals deepwater port, and it is clear that Texas Gulf Terminals' application should be denied. Texas Gulf Terminals' parent company Trafigura, which calls itself an oil trading firm based in Switzerland.' has no accountability to the people of the Texas and has structured the ownership of the Texas Gulf Terminals deepwater port in a newly created company with debt financing, which would allow Trafigura to avoid responsibility for any environmental catastrophe. Trafigura has no incentive to fully invest in Texas Gulf Terminals, the safety or security for the project, or the long-term future for the State of Texas environment, people, or the economy. During the next downturn in the oil economy, Trafigura has every incentive to abandon the Texas Gulf Terminals deepwater port and leave the State of Texas stuck with the consequences. B. Environmentally, an onshore project located at the Port of Corpus Christi best serves the national interest. An onshore project located at the Port of Corpus Christi and the Texas Gulf Terminals deepwater port are both designed to service VLCCs, which hold, on average, 2 million barrels of crude oil. The potential for catastrophic environmental damage exists if operations are not handled responsibly. The Port of Corpus Christi is a local government entity that has recently been awarded the Texas Environmental Excellence Award and Pollution Prevention Award in recognition of its commitment to environmental stewardship. In addition, an onshore project located at the Port of Corpus Christi enables faster loading rates than the Texas Gulf Terminals deepwater port, thereby reducing the C02 emissions from hoteling vessels. Further, an onshore project located at the Port of Corpus Christi will utilize state-of-the-art technology for vapor capture-technology that is not feasible on the deepwater port-to further lower emissions. The facilities and vessels in an onshore project located at the Port of Corpus Christi are in a controlled inshore environment, which results in a reduced risk of accidental spills and better control and faster response in the case of an environmental incident. On the other hand, Trafigura, which owns Texas Gulf Terminals, has a lengthy history of corporate malfeasance, including criminal liability for violating environmental laws on two continents. Its former CEO spent five months in jail in the Ivory Coast for dumping hazardous waste in one of its earlier environmental schemes.' Trafigura was fined over $1 million by the Trafigura reports that it operates 65 offices in 36 countries. It reports its registered office in Singapore and its head office in Geneva, Switzerland. 2 Peter Murphy, "Trafigura execs released after Ivory Coast deal." https://www.reuters.comlarticle/us-ivorycoasttoxic-release/trafigura-execs-released-after- ivory-coast-deal-idUSL 1461558720070214 3 'J" ._j, Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13,2018 Page 5 of 19 BAKER WOTRING llP Dutch for illegally exporting hazardous waste" and three times in the last 6 years Trafigura was cited by the EPA for violating the federal Clean Air Act, resulting in the payment of almost $100,000 in penalties to the federal government for its violations.' The slower loading rates of the deepwater port mean higher emission rates from hoteling vessels and the deepwater port cannot utilize many of the state-of-the-art emission reduction systems. The miles of multiple pipelines associated with the Texas Gulf Terminals deepwater port create a higher risk of pipeline failure. The distance to the Texas Gulf Terminals deepwater port and the exposed environment create longer response times to address environmental accidents and a greater risk of crude-oil spills spreading rapidly, thereby creating a direct threat of damage from oil spills to the national seashore and barrier islands. Trafigura does not deny this danger. In its statements to investors it admits that "[ d]amage to ... offshore mooring systems ... could lead to a spill, causing environmental damage with significant clean-up or remediation costs and legal costs." C. For safety and security, an onshore project located at the Port of Corpus Christi best serves the national interest. The Port of Corpus Christi follows proven safety and security best practices developed over decades and instituted at ports across the state and the nation, thereby lowering the chance of an incident. An onshore project located at the Port of Corpus Christi is within the area regularly monitored and covered by Port of Corpus Christi and partner security personnel, allowing for regular routine surveillance and shorter response times. The Texas Gulf Terminals deepwater port system requires a modem oil tanker to remain connected to the buoy for almost a day and half, far away from more secure shoreline areas. During that time, the vessel is subject to attack from hostile forces and from other potential threats. Trafigura's pending application fails to provide any information regarding security measures or plans to protect against these risks. In addition, the Texas Gulf Terminals deepwater port's remote location miles out at sea also makes responding to spills, explosions or other catastrophes difficult and risky. Emergency response personnel and equipment may have to be transported to the remote location of the Texas Gulf Terminals deepwater port during times of hurricanes, tropical storms, or other adverse weather events putting them in peril. II. Texas Gulf Terminals' proposed offshore port will be outside the reach of Texas regulators, increasing the potential for environmental disasters. Trafigura had Texas Gulf Terminals locate its deepwater port outside State of Texas waters which places it outside of State oversight. Even the structures located on land will be 4 "Trafigura found guilty of exporting toxic waste." www.bbc.comlnews/world-africa-l0735255. 5"Violation Tracker arent=trafigura. 6 Parent Company Summary." https://violationtracker.goodjobsfrrst.org/prog.php?p Trafigura Base Prospectus Euro Medium Term Note Programme, February 28,2018, at 11. • .4" Ij, BAKER WOTRING llP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13, 2018 Page 6 of 19 outside State jurisdiction. They will be areas of exclusive federal jurisdiction, impacting state and local officials' ability to enforce the law within Texas.? Under the Deepwater Port Act of 1974, a deepwater port and all "activities connected, associated, or potentially interfering with the use or operation" of the deepwater port are legally treated "in the same manner as if such port were an exclusive Federal jurisdiction located within a State."! Texas laws would apply "to the extent applicable and not inconsistent with" federal law. But the "laws shall be administered and enforced by the appropriate officers and courts of the United States."? Therefore, Texas Gulf Terminals' proposed deepwater port will create an area governed by federal officials, impacting Texas officials' ability to enforce the law within Texas. The lack of oversight by officials in the area will create additional risk that is not present under an onshore project located at the Port of Corpus Christi. III. The Application is incomplete because it does not contain required information regarding Texas Gulf Terminals' affiliates. The Application is incomplete, so it can be denied on that basis alone. In addition, as the Port explained in its August 24, 2018 letter, because the Application is incomplete, the Coast Guard and MARAD should withdraw the July 31, 2018 determination that the Application is complete. A copy of August 24,2018 letter demonstrating why the Application is incomplete and should be withdrawn is attached. The Application requires detailed information regarding the applicant (Texas Gulf Terminals) and its "affiliates.t"" Texas Gulf Terminals has provided information regarding itself and some of its affiliates, but it appears that no information has been provided for at least one affiliate, information that is material to any adequate review of the Application. Because that information has been withheld, the Application cannot be certified as complete, and this review process is defective and premature. The Regulations define an affiliate as an entity that "has a direct or indirect ownership interest of more than 3 percent in an applicant."!' The Application identifies two affiliates: 7 33 U.S.e. § 1518(a)(1). 833 U.S.C. § 1518(a)(1). 933 U.S.C. § 1518(b). 10 See, e.g., 33 C.F.R. § 148.105(a)(3)-(6). 1133 C.F.R. § 148.5. The "Regulations" refers to 33 C.F.R. Chapters 148-150, the provisions in the Code of Federal Regulations governing deepwater ports. t.¡" t..l! BAKER WOTRING Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13, 2018 Page 7 of 19 llP Trafigura Trading LLC and Trafigura US, Inc.12 The Application identifies Trafigura Trading LLC as the "Participating Affiliate.v':' The Application states that Trafigura Group Pte. Ltd. is Texas Gulf Terminals' ultimate owner." Because Trafigura Group Pte. Ltd. is Texas Gulf Terminals' ultimate owner, it has an "indirect ownership interest of more than 3 percent" in Texas Gulf Terminals and-according to the Regulations-is an affiliate.P In addition, there may be other intermediate entities that own more than 3% of Texas Gulf Terminals, which would also be considered affiliates under the Regulations." Therefore, Texas Gulf Terminals has at least one affiliate for which it does not provide the required information. The Application is defective in other material areas, failing to provide information on critical aspects of the project, including: 12 • Affiliate's ownership interest in Texas Gulf Terminals;"? • Affiliates' criminal history; • Affiliate's certification of no prohibited lobbying;'? • Affiliates' experience with Deepwater Portsr'? • Affiliates' financial information; and21 18 Application at § 2.1. 13 Application at § 2.1. Trafigura Trading LLC is the same entity as Trafigura AG, which is the company that pled guilty in 2006 for making false statements to the federal government in relation to the Iraq Oil-for-Food Program. United States v. Trafigura AG, No. 6:06-CR-00064 (S.D. Tex.). Trafigura AG converted from a Swiss corporation to a Delaware limited liability company. It then changed its name to Trafigura Trading LLC. See Trafigura AG Amendment to Registration filed with Texas Secretary of State (Feb. 20, 2015). 14 Application at § 2.1. Trafigura US, Inc. owns Texas Gulf Terminals and Trafigura Trading LLC. All are "ultimately owned by Trafigura Group Pte. Ltd." Id. Application at § 2.1; 33 C.F.R. § 148.5. 1633 C.F.R. § 148.5. 15 33 C.F.R. § 148.105(a)(3); Application at § 2.3. 1833 C.F.R. § 148.105(a)(5); Application at § 2.5. The Application also omits Trafigura US, Inc.'s criminal history, even though it is designated as an affiliate. Id. 17 19 33 C.F.R. § 148.205(a)(6); Application at § 2.6. The Application also omits Trafigura US, Inc.'s lobbying certification, even though it is designated as an affiliate. Id. 2033 C.F.R. § 148.205(b)(1); Application at § 3.1. The Application does not include this for any affiliates. Id. 33 C.F.R. § 148.l05(g)(1); Application at § 8.1. 21 It",,, 'ji BAKER WOTRING • LLP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13,2018 Page 8 of 19 Affiliates' throughput reports.P Because the Application does not provide the required information for at least one of Texas Gulf Terminals' affiliates, it is not complete, cannot be adequately reviewed, and cannot be approved. The Coast Guard and MARAD, therefore, should withdraw the July 31, 2018 determination that the Application is complete. If that is not done, then the Coast Guard and MARAD should deny the Application. IV. The Application is incomplete because it does not adequately address the impacts of the Texas Gulf Terminals project on threatened and endangered species, critical habitats and fish and wildlife resources. The Coast Guard and MARAD should also withdraw the July 31, 2018 determination that the Application is complete because it fails to adequately address the impacts of the construction and operation of the Texas Gulf Terminals deepwater port project on several threatened and endangered species and their critical habitats and fails to address the impacts to fish and wildlife resources, including special aquatic sites. In response to a request from the Coast Guard, the U.S. Fish and Wildlife Service (FWS) explained how the Application was deficient in terms of its assessment of the impacts of the construction and operation of the Texas Gulf Terminals project on threatened and endangered species, critical habitats and special aquatic sites.P The FWS identified that the Application documents improperly analyze impacts on listed species and critical habitats project segment by project segment. As stated in the FWS Response, a biological assessment (BA) needs to be prepared covering the entire project area from the Onshore Storage Facility in Nueces County to the Single Point Mooring Buoy System in the Gulf of Mexico so that impacts of the project on listed species and critical habitat can be analyzed for the entire project, not project segment by project segment. The Application is deficient because it applies a determination of either "no effect" or "may affect, not likely to adversely affect" (MANLAA) for each of the threatened and endangered species analyzed, but FWS stated that it could not concur with all these designations. FWS expressed specific concerns over the data that was gathered for the piping plover, red knot, and sea turtles, because it presents an incomplete picture for the anticipated construction and operations impacts of the project. The FWS comments illustrate that the Application documents also understate the impacts of the Texas Gulf Terminals project to coastal habitats, including sea grass beds and unvegetated tidal flats, both of which have been designated special aquatic sites. Among other factors, FWS 2233 C.F.R. § 148.105(g)(5); Application at 8.5. A copy of the July 27, 2018 FWS Response to Request for Comments on the Texas Gulf Terminals Application Completeness is attached. 23 'l" ._ji BAKER WOTRING llP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13,2018 Page 9 of 19 expressed "great concern" because the Application documents designate the impacts to sea grass beds and unvegetated tidal flats as temporary but fail to provide any restoration plans that would support that designation. Because of the deficiencies in the examination of the impacts of the Texas Gulf Terminals project on threatened and endangered species, critical habitats and fish and wildlife resources, the Application is not complete and the Coast Guard and MARAD should withdraw the July 31, 2018 determination that the Application is complete. If that is not done, then the Coast Guard and MARAD should deny the Application. v. The Application improperly designates large quantities of information as classified, keeping it from public view. Aside from its failure to provide adequate information and withholding critical information, the Application is further fatally deficient because it designates large quantities of information as confidential, shielding it from review by the public. Texas Gulf Terminals has greatly over-designated information as confidential. As the Port explained in its August 24, 2018 letter to Admiral Nadeau challenging the confidentiality designation pursuant to 33 C.F.R. § 148.221, the Coast Guard should release all information to the public that is not truly confidential." In addition, processing of the Application should be suspended while the confidentiality issues are being determined.P The Application should not be approved until the public has had an opportunity to review all information related to the Application that is not truly confidential. Otherwise, there is no transparency and the public is not able to provide meaningful comments on the Application. A copy of the August 24, 2018 letter challenging the confidentiality designation is attached. Under the federal regulations, an applicant for a deepwater port license is able to designate "commercial or financial information that is claimed to be ... confidential.t'é'' Rather than just designating commercial or financial information as confidential, Texas Gulf Terminals has improperly designated vast portions of the Application as confidential, including: • Information regarding Texas Gulf Terminals' qualifications and biographies of its key personnelr? 33 e.F.R. § 148.221(a) (allowing "any person" to "object to that claim" of confidentiality); 33 e.F.R. § 148.207(b). 2533 e.F.R. § 148.221(d). 2633 e.F.R. § 148.207(a)(2). 24 27 Application at § 3.1.1. ._j, .... " BAKER WOTRING lLP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13,2018 Page 10 of 19 • Affidavits regarding the citizenship of Texas Gulf Terminals' officers and directorsr" • Texas Gulf Terminals legal formation documentsr'? • Project completion schedule; 30 • Costs of construction." • Construction scheduler'? • Cost of decommíssioning.'" • Future projectionsr'" • Proposals and agreements-" • Operations Manualr" • Financial informationr'? and • Marine Archaeological Assessment.P Texas Gulf Terminals designated this information-both written answers and provided documents-as confidential in its entirety, as opposed to redacting the confidential information and making the non-confidential information available. Given the scope and breadth of the information withheld from the public, the public's ability to meaningfully understand and comment on the project is fatally compromised by the lack of transparency. 28 Application at § 5.0. 29 Application at § 5.0. 30 Application at § 8.2.1. 3133 e.F.R. § 148.105(g)(2)(i); Application at § 8.2.3. 3233 e.F.R. § 148.105(g)(2)(ii); Application at § 8.2.3. 3333 e.F.R. § 148.105(g)(2)(iii); Application at § 8.2.3. 3433 e.F.R. § 148.105(g)(3); Application at § 8.2.3. 3533 e.F.R. § 148.l05(g)(4); Application at § 8.2.3. 36 Application at § 25.0. 3733 e.F.R.§ 148.105(g)(1); Application at § 8.1. 38 Application at § 16.0. tJ" Ij, BAKER WOTRING llP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13, 2018 Page 11 of 19 The Port objects to this wholesale designation of information as confidential. The Port requests that all information that is not truly confidential be released to the public. At a minimum, the non-confidential portions of the information should be released, with any confidential portions redacted. Some of this information cannot be considered to fall within the definition of commercial or financial information. Information regarding the Texas Gulf Terminals' qualifications and biographies of its key personnel is not confidential information.'? Similarly, the affidavits regarding the citizenship of Texas Gulf Terminals' officers and directors, as well as Texas Gulf Terminals' legal formation documents, do not contain commercial or financial information, and any information they contain is not confidential.t? Even if some of the information Texas Gulf Terminals provided is confidential, that does not make the entire documents and responses confidential. Therefore, any information that is not itself confidential commercial or financial information should be made available to the public as soon as possible. In addition, pursuant to 33 U.S.C. § 148.21(d), the port requests that you stay all deadlines and suspend the processing of the Application until you make a determination regarding whether the information is truly confidential commercial and financial information that does not have to be disclosed. The regulations provide that you may determine that "the information at issue is so material that processing of the application must be suspended pending the determination of the claim.t"" Because Texas Gulf Terminals has designated so much information as confidential, the public does not have sufficient information to determine the risks that the proposed deepwater port poses and whether the Application complies with the statute and regulations. The Port, therefore, requests that you find that "the information at issue is so material that processing of the application must be suspended pending the determination of the claim.,,42 VI. The Application does not state whether the Deepwater Port will be open or closed, as required by the Regulations. The Regulations specifically require the application to state "whether access will be open or closed. ,,43 The Application does not even meet that simple requirement. Instead, the 39 Application at § 3.1.1. Application at § 5.0. 4133 e.F.R. § 148.221(d). 40 33 e.F.R. § 148.221(d). 42 43 33 e.F.R. § 148.105(f). Il" 'j, BAKER WOTRING llP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13,2018 Page 120f19 Application says that "the classification as either an open or closed port is not applicable.,,44 The Application bases that on fact that the "primary purpose of the proposed DWP is to serve as a crude export facility.v" Therefore, the Application is not complete because this question is not answered. The Application should not be approved until this required information is provided. VII. The Application contains unaudited financial statements, but it has not received the required waiver from the Commandant. The Regulations require audited financial statements for the applicant and "each affiliate with an ownership interest in the applicant of greater than 3 percent.,,46 But the Regulations allow the Assistant Commandant for Prevention Policy (CG-5P) (the "Commandant"), in concurrence with MARAD, to waive this requirement if the affiliate (1) does not normally produce audited financial statements, and (2) is part of a larger corporate group with sufficient audited statements."? The Application states that some of the financial statements it is providing for its affiliates are unaudited because those affiliates "do not in the normal course of business produce such auditable financial statements.v" There are at least two problems with the Application regarding this provision. First, it appears that the Commandant has not granted a waiver allowing unaudited financial statements. Second, the Application does not support granting the waiver because it does not say-as the Regulations require-that Texas Gulf Terminals "is part of a larger corporate group whose audited statement provides sufficient information to support an adequate assessment of the affiliate's relationship with and impact on the applicant.v'? The Port objects to the Application being considered because it contains unaudited financial statements without the Commandant's waiver allowing it to do so. The Port also objects to the Commandant granting the waiver because the Application does not support the required elements for the waiver. The Application should not be approved until audited financial statements are provided, as required by the statute and Regulations. 44 Application at § 7.0. Application at § 7.0. 4633 e.F.R. § 148.105(g)(l). 4733 e.F.R. § 148.105(g)(l)(i). 45 Application at § 8.1. 4933 e.F.R. § 148.105(g)(l)(i)(B). 48 tJ" Ij, VIII. BAKER WOTRING LLP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13, 2018 Page 13 of 19 The Application does not adequately address the risks posed by the Deepwater Port, including the terrorism-related risks or the risk of a spill from a loaded VLCC. The Regulations require the Application to include a "risk and consequence assessment.v'" The Application simply fails to provide this critical information, ignoring this statutory requirement. Instead, it states that a "formal risk assessment and consequence analysis would be conducted based on the final design of the Proposed project. The risk assessment and consequence analysis can then be done" ",,51 Texas Gulf Terminals, therefore, admits that it has not done the required risk and consequence assessment. The Application simply cannot be considered or approved without this information. Approval of this Application would fail every standard of review, because MARAD and the Coast Guard do not have the discretion to approve an application that fails to meet the statutory requirements. The information the Application provides on the risks of the Deepwater Port are inadequate. The Application contains a "worst-case discharge," which it claims is a spill of240 barrels instantaneously or 63,600 barrels over a period of 10 days.52 Although the basis for this assertion is unclear, it appears to be based on the amount of crude oil in the Deepwater Port itself, and not from the ship that it is loading. The Very Large Crude Carriers ("VLCCs") that the Deepwater Port will serve will contain 2 million barrels of crude oil. If the tanker itself were breached, all 2 million barrels could potentially spill. The risk and consequence assessment should consider the impact of2 million barrels of oil spilling 12 miles off the Texas coast. The Regulations specifically require the risk and consequence assessment to include "intentional events that compromise cargo containment. ,,53 The Application contains a provision regarding port security.54 That section notes that since September 11, "attention was focused on the prevention of terrorist attacks involving vessels and port facilities.,,55 But the Application fails to discuss in any way the threat terrorists pose to the Deepwater Port and the supertankers docked there for 48 hours at a time. Nor does the Application discuss any precautions that Texas Gulf Terminals will take to prevent terrorist attacks, or to mitigate the damage from them. The Application must be denied because it does not meet the statutory requirements by excluding the required risk and consequence assessment. 33 C.F.R. § 148.105(y). 50 Application at § 26.0. 51 Application at § 26.0; Application App. T. 33 e.F.R. § 148.105(y). 52 53 54 Application Vol. II § 14. 55 Application Vol. II § 14. tJ" -_ji BAKER WOTRING IX. LLP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13,2018 Page 14 of 19 Texas Gulf Terminals has not yet obtained many of the certifications and permits required to operate the Deepwater Port. The Application recognizes that numerous permits and certifications will be needed before Texas Gulf Terminals can construct and operate the Deepwater Port. The Application states that the permits have been applied for but are not yet granted. The Application should not be approved without those required permits. The pending permit applications include: • Clean Water Act Section 401(a)(1) State Certification from the Texas Railroad Commissionr" • River and Harbors Act Section 10 Permit from the U.S. Army Corps of Engineers; 57 • Clean Water Act Section 404 Permit from the U.S. Army Corps of Engineers; 58 • Clean Water Act Section 402 National Pollutant Discharge Elimination System (NPDES) Permit from the Texas Railroad Commission and U.S. Environmental Protection Agencyr'" • Clean Air Act New Source Review Permit from the Texas Commission on Environmental Quality and the U.S. Environmental Protection Agencyr'? and • Clean Air Act Title V Operating Permit from the U.S. Environmental Protection Agency.?' The Application should not be approved until those required permits are issued. 56 Application at § 10.I. 57 Application at § 10.2. 58 Application at § 10.3. 59 Application at § 10.6. 60 Application at § 26.0. 61 Application at § 26.0. '._ji ..6" X. Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13, 2018 Page 15 of 19 BAKER WOTRING LLP Trafigura's Environmental Record Is Reason Enough to Reject the Application. Trafigura, which owns Texas Gulf Terminals, has a lengthy history of corporate malfeasance, including criminal liability for violating environmental laws on two continents. Its former CEO spent five months in jail in the Ivory Coast for dumping hazardous waste in one of its earlier environmental schemes.F Trafigura was fined over $1 million by the Dutch for illegally exporting hazardous waste.v' Trafigura was involved with a price-fixing scheme in Malta/" Three times in the last 6 years Trafigura was cited by the United States EPA for violating the federal Clean Air Act, resulting in three administrative settlement agreements and the payment of almost $100,000 in penalties to the federal government for its violatíons.f Trafigura pled guilty to violating U.S. sanctions on Saddam Hussein and Iraq when it illegally imported Iraqi oil through the United Nations Oil-for-Food program.P'' In its statements to investors it admits that "[ d]amage to ... offshore mooring systems ... could lead to a spill, causing environmental damage with significant clean-up or remediation costs and legal costa."? In conclusion, the Port requests that the Coast Guard and MARAD deny the Application. At a minimum, the Coast Guard and MARAD should not approve the Application until it is complete and all non-confidential information regarding it has been made available for the public's review. Thank you for your attention to this matter. Please do not hesitate to contact me if you need additional information or have any questions. Sincerely, ~~~ Peter Murphy, "Trafigura execs released after Ivory Coast deal." https://www.reuters.comlarticle/us-ivorycoasttoxic-release/trafigura-execs-released-after- ivory-coast-deal-idUSL 1461558720070214. 62 63 "Trafigura found guilty of exporting toxic waste." www.bbc.comlnews/world-africa-l0735255. "Malta bans Trafigura, Total unit from oil supply tenders." https://www.reuters.comlarticle/malta-oilenemalta/update-l-malta-bans-trafigura-total-unit-from-oil-supply-tenders-idUSL6NOBLDRU20 130221. 64 "Violation Tracker arent=trafigura. 65 Parent Company Summary." https://violationtracker.goodjobsfirst.org/prog.php?p 66 Harvey Rice, "Firm pleads guilty in Oil-for-Food case." https://www.chron.comlbusiness/energy/article/Firmpleads-guilty-in-Oil-for-Food-case-1862731.php. 67 Trafigura Base Prospectus Euro Medium Term Note Programme, February 28,2018, at 11. tJ" •_l! BAKER W O TRI N G llP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13, 2018 Page 16 of 19 Attachments: August 24, 2018 Letter Challenging Designation of Material as Confidential August 24,2018 Letter Requesting Coast Guard and MARAD to Withdraw Determination that the Application is Complete July 27,2018 FWS Response to Request for Comments on the Texas Gulf Terminals Application Completeness. ce: Texas Gulf Terminals, Inc. Attn: Ms. Denise Rogers 1401 McKinney, Suite 1500 Houston, Texas 77010 Ms. Yvette Fields Director Maritime Administration Office of Deepwater Ports and Offshore Activities 1200 New Jersey Avenue SE, W21-310 (MAR-530) Washington, DC 20590 Mr. Curtis E. Borland Attorney/Advisor Vessel and Facility Operating Standards Division U. S. Coast Guard 2703 Martin Luther King Jr. Ave, SE Washington DC 20593-7509 Mr. Christopher Wilson Program Analyst Federal Property Management Section Advisory Council on Historic Preservation 401 F Street NW, Suite 308 Washington DC 20001 Mr. T.J. Broussard Regional Environmental Officer Bureau of Safety and Environmental Enforcement 1201 Elmwood Park Boulevard New Orleans, Louisiana 70123 tJ" Ij! BAKER WOTRING llP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13, 2018 Page 17 of 19 Ms. Terri L. Thomas Regional Supervisor Office of the Environment Bureau of Ocean Energy Management 1201 Elmwood Park Boulevard New Orleans, Louisiana 70123 Council on Environmental Quality 730 Jackson Place NW Washington DC 20503 Ms. Rachel Halpern Industry Analyst Department of Energy Room 3E-052 1000 Independence Ave. SW Washington DC 20585 Ms. Amy Sweeney Director Division of Natural Gas Regulation U.S. Department of Energy Room 3E-052 1000 Independence Ave. SW Washington DC 20585 Ms. Judith G. Garber Principal Deputy Assistant Bureau of Oceans and International Environmental and Scientific Affairs U. S. Department of State 2201 C Street NW Washington DC 20520 Mr. Douglas Cotton Environmental Protection Specialist Office of Energy Projects Federal Energy Regulatory Commission 888 1st Street NE Washington DC 20426 Ms. Katherine Renshaw Section Chief Environmental Review & Coordination Section NOAA Office of General Counsel tl" Ij! BAKER WOTRING LLP National Oceanic and Atmospheric Administration 1315 East-West Highway SSMC-4 Room 6111 Silver Spring, Maryland 20910 Mr. Chris Oliver Assistant Administrator for Fisheries National Marine Fisheries Service National Oceanic and Atmospheric Administration 1315 East-West Highway Silver Spring, Maryland 20910 Mr. Greg Gould Director Office of Natural Resource Revenue 1849 C Street NW, Mail Stop 5134 Washington DC 20240 Mr. Kenneth Lee Director of Engineering & Research Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Ave. SE Washington DC 20590 Mr. Stephen Younger Laboratories Director Sandia National Laboratories P.O. Box 5800 Albuquerque, New Mexico 87185 Mr. Matt Kimmel Supervisor U.S. Army Corps of Engineers Corpus Christi Regulatory Office 5151 Flynn Parkway, Suite 306 Corpus Christi, Texas 78411-4318 Mr. Robert Tomiak Director Office of Federal Activities Office of Enforcement and Compliance Assurance U.S. Environmental Protection Agency William Jefferson Clinton Building S Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13,2018 Page 18 of 19 tJ" Iji BAKER WOTRING llP 1200 Pennsylvania Ave. NW Washington DC 20004 Mr. Pat Clements Ecological Services Field Office U.S. Fish and Wildlife Service 4444 Corona Drive, Suite 215 Corpus Christi, Texas 78411-4300 Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau September 13,2018 Page 190f19 • ..1" ~1 DEBRA TSUCHlY AMA BAKER. MANAGING PARTNER. BAKER WOTRING DIREcrDIAL: LLP (713)980-1717 dbaket®bakerwotring.com August 24, 2018 Via Federal eRulemaking Portal & Certified Mail Rear Admiral John P. Nadeau Assistant Commandant for Prevention Policy (CG-5P) U.S. Coast Guard, Stop 7501 2703 Martin Luther King Jr Ave., SE Washington, DC 20593-7501 Re: Texas Gulf Terminals Project Federal Docket No. MARAD-2018-0114 Dear Rear Admiral Nadeau: I am writing on behalf of the Port of Corpus Christi Authority (the "Port") regarding Texas Gulf Terminals Inc.'s ("Texas Gulf Terminals'') application for a deepwater port license (the "Application"). Pursuant to 33 C.F.R. § 148.221, the Port is challenging Texas Gulf Terminals' designation of material in the Application as confidential. I Under the federal regulations, an applicant for a deepwater port license is able to designate "commercial or financial information that is claimed to be ... confidential.t'é Texas Gulf Terminals has done that, designating vast portions of the Application as confidential, including: I 33 • Information regarding Texas Gulf Terminals' biographies of its key personnek? qualifications and • Affidavits regarding the citizenship of Texas Gulf Terminals' officers and directors;" • Texas Gulf Terminals legal formation documents;" e.F .R. § 148.221(a) (allowing "any person" to "objectto that claim" of confidentiality); 33 e.F .R. § 148.207(b). 233 e.F.R. § 148.207(a)(2). 3 Application at § 3.1.1. 4 Application at § 5.0. s Application at § 5.0. 700 JPMORGAN CHASE TOWER 600 TRAVIS STREET HOUSTON. TEXAS 77002 (TELl713.980.1700 (FAl()713.980.1701 Rear Admiral John P. Nadeau August24,2018 Page 2 of7 tJ"BAKER ._ji WOTRING llP • Project completion schedule; • Costs of construction; 7 • Construction schedule.! • Cost of decommíssíoníng.? • Future projections.'? • Proposals and agreements; 11 • Operations Manual; 12 • Financial information.'? and • Marine Archaeological Assessment.!" 6 Texas Gulf Terminals designated this information-both written answers and provided documents-as confidential in its entirety, as opposed to redacting the confidential information and making the non-confidential information available. The Port objects to this wholesale designation of information as confidential. The Port requests that all information that is not truly confidential be released to the public. At a minimum, the non-confidential portions of the information should be released, with any confidential portions redacted. Some of this information is in no way confidential commercial or financial information. Information regarding the Texas Gulf Terminals' qualifications and biographies of its key personnel is not confidential information. IS Similarly, the affidavits regarding the citizenship of Texas Gulf Terminals' officers and directors, as well as Texas Gulf Terminals legal formation Application at § 8.2.1. 6 733 e.F.R. § 148.105(g)(2)(i); Application at § 8.2.3. 833 e.F.R. § 148.l05(g)(2)(ii); Application at § 8.2.3. 933 e.F.R. § 148.105(gX2)(iii); Application at § 8.2.3. 1033 e.F.R. § 148.105(g)(3); Application at § 8.2.3. 11 33 e.F.R. § 148.105(g)(4); Application at § 8.2.3. 12 Application at § 25.0. 33 e.F.R.§ 148.105(g)(1); Application at § 8.1. 13 14 Application at § 16.0. IS Application at § 3.1.1. tl" '_ji Rear Admiral John P. Nadeau August 24,2018 Page 3 of7 BAKER WOTRING LLP documents, do not contain commercial or financial information, and any information they contain is not confidential.l'' Even if some of the information Texas Gulf Terminals provided is confidential, that does not make the entire documents and responses confidential. Therefore, any information that is not itself confidential commercial or financial information should be made available to the public as soon as possible. In addition, pursuant to 33 U.S.C. § 148.21(d), the port requests that you stay all deadlines and suspend the processing of the Application until you make a determination regarding whether the information is truly confidential commercial and financial information that does not have to be disclosed. The regulations provide that while this objection does not stay the Application automatically, you may determine that "the information at issue is so material that processing of the application must be suspended pending the determination of the claím."? Because Texas Gulf Terminals has designated so much information as confidential, the public does not have sufficient information to determine the risks that the proposed deepwater port poses and whether the Application complies with the statute and regulations. The Port, therefore, requests that you find that ''the information at issue is so material that processing of the application must be suspended pending the determination of the claim." 18 Thank you for your attention to this matter. Please do not hesitate to contact me if you need additional information or have any questions. Sincerely, cc: 16 Texas Gulf Terminals, Inc. Attn: Ms. Denise Rogers 1401 McKinney, Suite 1500 Houston, Texas 77010 Application at § 5.0. 1733 e.F.R. § 148.221(d). 1833 e.F.R. § 148.221(d). IJ" '.lA BAKER. WOTRING LL' Rear Admiral Mark H. Buzby Administrator Maritime Administration 1200 New Jersey Avenue SE Washington DC 20590 Ms. Yvette Fields Director Maritime Administration Office of Deepwater Ports and Offshore Activities 1200 New Jersey Avenue SE, W21-31O (MAR-530) Washington, DC 20590 Mr. Curtis E. Borland Attorney/Advisor Vessel and Facility Operating Standards Division U.S. Coast Guard 2703 Martin Luther King Jr. Ave, SE Washington DC 20593-7509 Mr. Christopher Wilson Program Analyst Federal Property Management Section Advisory Council on Historic Preservation 401 F Street NW, Suite 308 Washington DC 20001 Mr. T.J. Broussard Regional Environmental Officer Bureau of Safety and Environmental Enforcement 1201 Elmwood Park Boulevard New Orleans, Louisiana 70123 Ms. Terri L. Thomas Regional Supervisor Office of the Environment Bureau of Ocean Energy Management 1201 Elmwood Park Boulevard New Orleans, Louisiana 70123 Rear Admiral John P. Nadeau August 24, 2018 Page d of ? 1.4" ._lA BAKER WOTRING LL' Rear Admiral John P. Nadeau August 24, 2018 Page 5 of7 Council on Environmental Quality 730 Jackson Place NW Washington DC 20503 Ms. Rachel Halpern Industry Analyst Department of Energy Room3E-052 1000 Independence Ave. SW Washington DC 20585 Ms. Amy Sweeney Director Division of Natural Gas Regulation U.S. Department of Energy Room3E-052 1000 Independence Ave. SW Washington DC 20585 Ms. Judith G. Garber Principal Deputy Assistant Bureau of Oceans and International Environmental and Scientific Affairs U.S. Department of State 220 I C Street NW Washington DC 20520 Mr. Douglas Cotton Environmental Protection Specialist Office of Energy Projects Federal Energy Regulatory Commission 888 1st Street NE Washington DC 20426 Ms. Katherine Renshaw Section Chief Environmental Review & Coordination Section NOAA Office of General Counsel National Oceanic and Atmospheric Administration 1315 East-West Highway SSMC-4 Room 6111 Silver Spring, Maryland 20910 tl" •.Ji BAKER WOTRING LLP Mr. Chris Oliver Assistant Administrator for Fisheries National Marine Fisheries Service National Oceanic and Atmospheric Administration 1315 East-West Highway Silver Spring, Maryland 20910 Mr. Greg Gould Director Office of Natura! Resource Revenue 1849 C Street NW, Mail Stop 5134 Washington DC 20240 Mr. Kenneth Lee Director of Engineering & Research Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Ave. SE Washington DC 20590 Mr. Stephen Younger Laboratories Director Sandia National Laboratories P.O. Box 5800 Albuquerque, New Mexico 87185 Mr. Matt Kimmel Supervisor U.S. Army Corps of Engineers Corpus Christi Regulatory Office 5151 Flynn Parkway, Suite 306 Corpus Christi, Texas 78411-4318 Mr. Robert Torniak Director Office of Federal Activities Office of Enforcement and Compliance Assurance U.S. Environmental Protection Agency William Jefferson Clinton Building S. 1200 Pennsylvania Ave. NW Washington DC 20004 Rear Admiral John P. Nadeau August 24,2018 Page6of7 tJ" I..J j BAKER WOTRING lLP Mr. Pat Clements Ecological Services Field Office U.S. Fish and Wildlife Service 4444 Corona Drive, Suite 215 Corpus Christi, Texas 78411-4300 Rear Admiral John P. Nadeau August 24,2018 Page 7 of7 •..¡ •• ~1 DEBRA TSUCHIYAMABAKER BAKER WOTRING MANAGING PARTNER DIRECTDIAL: (ID)980-1717 cJbaker@bakerwotring.com LL' August24,2018 Via Federal eRulemaking Portal & Certified Mail Rear Admiral Mark H. Buzby Administrator Maritime Administration 1200 New Jersey Avenue SE Washington DC 20590 Re: Rear Admiral John P. Nadeau Assistant Commandant for Prevention Policy (CO-5P) U.S. Coast Guard, Stop 7501 2703 Martin Luther King Jr. Ave., SE Washington, D.C. 20593-7501 Texas Gulf Terminals Project Federal Docket No. MARAD-2018-0114 Dear Admiral Buzby and Admiral Nadeau: This letter is submitted on behalf of the Port of Corpus Christi Authority ("Port''). The Port is requesting that the United States Coast Guard ("Coast Guard") and the United States Maritime Administration ("MARAD'') withdraw the July 31, 2018 determination that Texas Gulf Terminals Inc. 's ("Texas Gulf Terminals'') application for a deepwater port license (the "Application") is complete. The Application does not meet the requirements of 33 U.S.C. § 1504(c)(1), so it is not complete. Under 33 U.S.C. § 1504(c)(1), an application cannot be determined complete unless it "appears to contain all of the information required by" 33 U.S.C. § 1504(c)(2). The information required by 33 U.S.C. § 1504(c)(2) includes: • ''the name, address, citizenship, telephone number, and the ownership interest in the applicant, of each person having any ownership interest in the applicant greater than 3 per centum";' and • "the name, address, citizenship, telephone number, and the ownership interest of each affiliate of the applicant ... together with a description of the manner in which such affiliate is associated with the app li cant. ... ,,2 The Application does not appear to contain-and does not contain-this required information, so it is not complete. 133 U.S.C. § 1504(c)(2)(A). 233 U.S.C. § 1504(c)(2)(C). 700 JPMORGAN CHASE TOWER 600 TRAVIS STREET HOUSTON. TEXAS77002 (TEL) 713.980.1700 (FAX) 713.980.1701 t.,¡" •.J 1 BAKER.. W O T RI N G llP Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau August 24, 2018 Page z of ? The federal regulations defme an "affiliate" as an entity that "has a direct or indirect ownership interest of more than 3 percent in an applicant,"? The Application identifies two affiliates: Trafigura Trading LLC and Trafigura US, Inc," The Application identifies Trafigura Trading LLC as the "Participating Affiliate. "s The Application states that Trafigura US, Inc. "holds ownership interests in" Texas Gulf Terminals and that Trafigura Group Pte. Ltd. is Texas Gulf Terminals' ultimate owner." Because Trafigura Group Pte. Ltd. is Texas Gulf Terminals' ultimate owner, it has an ''indirect ownership interest of more than 3 percent" in Texas Gulf Terminals," Therefore, Trafigura Group Pte. Ltd. both (1) has an ownership interest in Texas Gulf Terminals greater than 3 per cent, and (2) is Texas Gulf Terminals' affiliate. But the Application does not identify Trafigura Group Pte. Ltd. as an owner or affiliate, and it does not provide the required information for Trafigura Group Pte. Ltd. Therefore, Texas Gulf Terminals has at least one owner and affiliate for which it has not provided the required information. In addition, the Application states that Texas Gulf Terminals is ''ultimately owned by Trafigura Group Pte. Ltd."s That implies that there are additional entities between Trafigura US, Inc. and Trafigura Group Pte. Ltd. that have ownership interests in Texas Gulf Terminals. So there may be other intermediate entities that own more than 3% of Texas Gulf Terminals, which would also be considered owners and affiliates under the regulations.? The Application does not provide the required information for any of those entities. So it is possible that there are additional owners and affiliates, in addition to Trafigura Group Pte. Ltd., for which Texas Gulf Terminals has not provided the required information. Therefore, based on the Application itself, the Application does not "appear[] to contain all ofthe information required by" 33 U.S.C. § 1504(c)(2).lO Instead, the Application itself clearly shows that the information required by 33 U.8.C. § 1504(c)(2)(A) and 33 U.S.C. § 1504(c)(2)(C) is missing for at least one of Texas Gulf Terminals' owners and affiliates, specifically Trafigura Group Pte. Ltd. 333 e.F.R § 148.5. 4 Application at § 2.1. s Application at § 2.1. 6 Application at § 2.1. Trafigura US, Inc. owns Texas Gulf Terminals and Trafigura Trading LLe. All are "ultimately owned by Trafigura Group Pte. Ltd." Id. 7 Application at § 2.1; 33 e.F.R § 148.5. 8 Application at § 2.1. 9 33 e.F.R. § 148.5. la 33 u.s.e. § 1504(c)(l). - ... " -..Ji BAKER. WOTRING tu Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau August 24,2018 Page 3 of7 Because the Application itself does not "appear[] to contain all of the information required by" 33 U.S.C. § 1504(c)(2), the Application should not have been determined to be complete.'! The Port, therefore, requests that the Coast Guard and MARAD withdraw the determination that the Application is complete. The Coast Guard and MARAD should cancel all pending deadlines and "take no further action with respect to the application until such deficiencies have been remedied." 12 In addition, as Mr. Curtis Borland recognized in his July 31, 2018 letter to Texas Gulf Terminals, the Application is missing a number of required elements. The missing information includes the detailed information required for all affiliates of the applicant. The areas where the Application is lacking required information on all affiliates includes: • Affiliate's ownership interest in Texas Gulf Terminalsi'! • Affiliates' criminal history; 14 • Affiliate's certification of no prohibited lobbying; 15 • Affiliates' experience with deepwater ports; 16 • Affiliates' ñnancíal information; 17 and • Affiliates' throughput reports. IS The Coast Guard and MARAD should require Texas Gulf Terminals to provide all required information on all of its affiliates, and they should not continue the processing of the application or approve the license without that required information. The Port will also provide additional information regarding that in its comments regarding the Application. Texas Gulf Terminals' failure to provide the required information on all of its affiliates is especially troubling because it has chosen as its participating affiliate a company that has been convicted of federal felonies involving false statements.l? Texas Gulf Terminals has designated 33 U.S.C. § 1504(c)(1). 1233 U.S.C. § 1504(c)(I). 1333 C.F.R. § 148.105(a)(3); Application at § 2.3. 1433 C.F.R. § 148.105(aX5); Application at § 2.5. The Application also omits Trafígura US, Inc.'s criminal history, even though it is designated as an affiliate. Id. 11 IS 33 C.F.R. § 148.205(a)(6); Application at § 2.6. The Application also omits Trafigura US, Inc.'s lobbying certification, even though it is designated as an affiliate. Id. 1633 C.F.R. § 148.205(b)(1); Application at § 3.1. The Application does not include this for any affiliates. Id. 33 C.F.R. § 148.105(g)(l); Application at § 8.1. 1833 C.F.R. § 148.105(g)(5); Application at § 8.5. 17 19 See Judgment and Plea Agreement in United States v. Trofigura AG, No. 6:06-CR-00064 (S.D. Tex.) (convicted of violating 18 U.S.C. § 542, Entry of Goods by Means of False Statements). attached as Exs. A and B. • .4" ._J¡ Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau August24,2018 Page4of7 BAKER.. WOTRING LL' Trafigura Trading LLC as its "Participating Affiliate" for the project.20 Trafigura Trading LLC was previously named Trafigura AG.21 In 2006, Trafigura AG-now Trafigura Trading LLCpled guilty in Texas federal court to making false statements to the federal government in relation to the Iraq Oil-for-Food Program.22 Because Texas Gulf Terminals has chosen to hide the identity or not provide required information for its other affiliates, there is no way to determine if they also have criminal convictions or have engaged in improper business practices. Thank you for your attention to this matter. Please do not hesitate to contact me if you need additional information or have any questions. Sincerely, ce: Texas Gulf Terminals, Inc. Attn: Ms. Denise Rogers 140 1 McKinney, Suite 1500 Houston, Texas 77010 Ms. Yvette Fields Director Maritime Administration Office of Deepwater Ports and Offshore Activities 1200 New Jersey Avenue SE, W21-310 (MAR-530) Washington, DC 20590 Mr. Curtis E. Borland Attorney/Advisor Vessel and Facility Operating Standards Division U.S. Coast Guard 2703 Martin Luther King Jr. Ave, SE Washington DC 20593-7509 20 Application 21 See at § 2.1. Trafigura AG Amendment to Registration filed with Texas Secretary of State (Feb. 20, 2015), attached as Ex. C. 22 See Ex. A; Ex. B. .l" ._.lA BAlCER WOTRING ur Mr. Christopher Wilson Program Analyst Federal Property Management Section Advisory Council on Historic Preservation 401 F StreetNW, Suite 308 Washington DC 20001 Mr. T.J. Broussard Regional Environmental Officer Bureau of Safety and Environmental Enforcement 1201 Elmwood Park Boulevard New Orleans, Louisiana 70123 Ms. Terri L. Thomas Regional Supervisor Office of the Environment Bureau of Ocean Energy Management 1201 Elmwood Park Boulevard New Orleans, Louisiana 70123 Council on Environmental Quality 730 Jackson Place NW Washington DC 20503 Ms. Rachel Halpern Industry Analyst Department of Energy Room3E-052 1000 Independence Ave. SW Washington DC 20585 Ms. Amy Sweeney Director Division of Natural Gas Regulation U.S. Department of Energy Room3E-052 1000 Independence Ave. SW Washington DC 20585 Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau August 24,2018 PageS of7 -l" •..1 BAKER.. 1 WOTRING LL' Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau August 24,2018 Page6of7 Ms. Judith G. Garber Principal Deputy Assistant Bureau of Oceans and International Environmental and Scientific Affairs U.S. Department of State 2201 C Street NW Washington DC 20520 Mr. Douglas Cotton Environmental Protection Specialist Office of Energy Projects Federal Energy Regulatory Commission 888 1st Street NE Washington DC 20426 Ms. Katherine Renshaw Section Chief Environmental Review & Coordination Section NOAA Office ofGenera1 Counsel National Oceanic and Atmospheric Administration 1315 East-West Highway SSMC-4 Room 6111 Silver Spring, Maryland 20910 Mr. Chris Oliver Assistant Administrator for Fisheries National Marine Fisheries Service National Oceanic and Atmospheric Administration 1315 East-West Highway Silver Spring, Maryland 20910 Mr. Greg Gould Director Office of Natural Resource Revenue 1849 C StreetNW, Mail Stop 5134 Washington DC 20240 Mr. Kenneth Lee Director of Engineering & Research Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Ave. SE Washington DC 20590 ,..}" BAKER l_j, WOTRING LLP Mr. Stephen Younger Laboratories Director Sandia National Laboratories P.O. Box 5800 Albuquerque, New Mexico 87185 Mr. Matt Kimmel Supervisor U.S. Army Corps of Engineers Corpus Christi Regulatory Office 5151 Flynn Parkway, Suite 306 Corpus Christi, Texas 78411-4318 Mr. Robert Torniak Director Office of Federal Activities Office of Enforcement and Compliance Assurance U .S. Environmental Protection Agency William Jefferson Clinton Building S. 1200 Pennsylvania Ave. NW Washington DC 20004 Mr. Pat Clements Ecological Services Field Office U.S. Fish and Wildlife Service 4444 Corona Drive, Suite 215 Corpus Christi, Texas 78411-4300 Rear Admiral Mark H. Buzby Rear Admiral John P. Nadeau August 24,2018 Page 7 of7 = AO WB Case 6:06-cr-00064 Document 9 Filed in TXSD on 06/07/06 Page 1 of 3 fOl) JiJIpIIDt la. CriIIIIIIIlc.. tbrOlpal ....... DdIIdIatI UNITED STATES DISTRICT COURT Southern DiItrlet .fTesas B............. JUDGMENt IN A ClUMINAL CASE UNrl'ID STATES OF AMIIuCA (For OIpniatioDal Def'aM:IIma) Y. TRAnGlJRAAG (la............ 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UIdil JeIdtutioD, 00ItI, and ",,1I1ICIIIIIICDtI ÍDIpOIe4 by dUajudamepl III tbIly púd.1f oaIencl tID pay NIItitudoa. the c1dIDdIDt cqaniatJon üaIl notify the COUlt _ United Statel AttIJrrJiIJy 1IIIta'ia1 chID¡e iD the oqpDizadOD'. ecoaomio 0Ü'CUIIIIIIIIlC Defeadaat 0rpaizIti0n'1 PecIrnlBmployerl.D.: .. aD'" Nmae of., _ Defeadaat 0tpnizwtIm'1 PriacipIl B.i ... AddIea: JO D.RAlNEY ~.,..ClJlJDGlj BfM(mM .... Case 6:06-cr-00064 tan. A0245B 3101)~ SbIIIt3. PirtA Document 9 ~c..farOlpin"" -CriJDiul~""" •• Filed in TXSD on 06/07/06 Page 2 of 3 DII&DdIDIa ~-",,2C!1' DEFENDANT OR.GANIZATION: TRAJ'lGVIlA AG (la.,. CASENUMBER.: 6:t6C111164-1tl ..... V.... tile Laws ofSwhltrlaad) CRIMINAL MONETARY PENALTIES The defeadInt GIDIlizItioa IbIIlpay the fo11owiDs total crimiDal mOllfltUy penalties in IICCOldIIloe with die schedu1e ofpayme!lts lit fbIth on Sheet 3, PutlJ. A TOTALS ?2'!t The Il*iIl usesameJIt amount coaaiIII ofS400.oo [] 1leIdtado. SO.OO I'ble S 8.000,000.00 S 100.00 II to each of Counts 111lCl2. for. total of$800.oo SeoAcldilical TenDI fbrCrimlulMcIaIIIrJ ......... [J The cktmmiaaúOD oftaCitulion is deflateduntil • An Amtmded .Judam-iD a CrimiDIl Cae (AO 245C) will be entered after such cIeCDnDiDaIioIl O 1'be defeadIIlt OIpIIizatioa sPIl mikeRItitutioa (iDcIudiD¡ COIDJD.lIIÜt)'fllllilutioa) to die followiq payeeI iD die IDlOUDt lilted below. =:====;¡=~c::=a~~===~),Pf:'=-~ed IIlUIt be peid ill tbII prior to the Dited States ÑCeiYiIII paymeat. or:r;:::r of ..... SO.OO SO.OO [] IfllJllllicab1c. NlliadiOllIlJlOUllt onIerecI purauIIIt to plea a,peeDlODt $ e II 0nIer _ fI_ The defeodaat 0IK8DizIfi0D..... pay iDtInIt OIl my fine or I'CIIitutionofmOR than 52$0, UnJea the fine or ftIIIitudOll infbIl beJín the fifteea1h _ after the date olllle ID 18 U.S.C. 13612(1). All oIlbe paymcat optiOllll on SMef 5. PllltB may be sut;ect ID peaj1tia fbr deliDqualcyíná defau pIIIIUIIlt to 18 U.S.e: f 3612(J). ~tG"wnt The oourt dIIermiDed that IlIe defeMw.t orpaiAdnn doeIlIOt 1Iav. the lbiüty to pay iDterest, aDd it is orcIeIecl that: II the intmeat reqllh....m is waivedfor the II :IDe arJiJar [] [] the intBrelt requirement fbr the [J fine U1/IJIor o ratitutioo restitutioa. is modified. followi: Case 6:06-cr-00064 Document 9 Filed in TXSD on 06/07/06 Page 3 of 3 A024SB c...for Qfpeh-tIoe" la. CriIIIiaII SW 3. filtB - ScbIIdIde of"_ (RAt. 3,101) ~ DefIIIcIMII ........ - .... 3of3 DBFBNDANT ORGANlZA110N: TIlAJIGlJIlA AG (JacorJonted Uader" LawI ofSwItzerIu.d) CASBNUMBBR.: .~ SCHEDULE OF PAYMENTS Ravin¡u_eeI the orpaizaliOll'1 ability to pay. J'Il1II1"Dt ofdle total criminal mondIIy penaltieilhaJl be due u followl: A C Lump 8UIIl payment of due immediately. ba1at'lce due !lOt later thaD .lJJdIor [] iD ICCOJdInce with Ce. [] Do arJIJIor E. Wow; or e B e II Payment to beJia ümnediately (may be combined with e [] Payment iIl D [] =~=~., .(e.... ííiOiítbI OI'yan). to commence 1I!IIm OfapemllOll; or ____ a B bcIow~ or [] c. [] D. or (0.8.. equal, weck1y.IDOIdbJy.quarterly) inaCaIImenfI of (e.... 30 or60diYl) (e.... IIlOIltb. or,an). to CCJIIIIDIIII» (0.8.• equal, weekly. monthly, quarterly) inlfallmen. of' Payment in (e .... 30 or ~ over• .-joel of &11ii date ofdliljullpleD.t; over. perj.ocl of ftoiIl impriIoameatto. B 1m Special inluudiOlll repnIiq the payment ofcriminal monetIl'y peultIa: Make aU paymeaII payable to: U.S. Dilbict CIeJt, P.O. Box 1638. Viotoria, TX 77902 All criminal monetlry peultiCi .... made to the eleJt oftbe or die UoitecI Stliel attomey court, UDIca otberwile or düected by the court, the probation oftic:er. e JaJat'" Senral AIPwt e SelAcIIIidMDdIIdIaII ..... Joiat ... Sma1... e Tho defeodIat cnpniatiM [] The defeadIIlt orpaizatiOD IhIllpay the foUowia¡ COI1It COIt(I): ID The deftIIdult cqaniatioD Iha1l bfeit 1be deteadaDt orpIÜ2JIdion'l iIdenIIt in the foUowin¡ property to 1be UDiIecI States: $9,937,551.59 per the order offorfeituze fiIoclat 1iClldeDciDa1bat ¡uaacw to thiljudpJcat. [] SelAddi!lcee1JlGrldtl4I'lapatJSIIIIt. thaU pay the colt ofproRC:UdoD. Case 6:06-cr-00064 Document 5 Filed in TXSD on OS/25/06 Page 1 of 13 UNII'ED STATES COURTS SOUIHEINDIS1RlCT OflEXAS FILED MAY25m lJNITED STATESDlSTIUcr COURT ....... _. Cldlt_ SOUTIIERN DISTRICl 01' TEXAS VlCTOlUADMSION I I I I UNITED STATESOF AMERICA VS CRIMINALNV- 06 - 64 I TRAI1GURAAG t (lacorporated .ader ae lawl of I ~IaD~ PLEA AGRIEMINT The United States of America, by and tJuoush Donald J. DeGabrielle, Jr., United States Attomey for the Southern Dis1riet of Texas, and Melissa AnDis, Assistant United States Attorney, and defendant, Trafipra AG, and defendant's counsel punuant to R.ule 11(c)(l)(C) of the Federal Rules of Criminal Prooeci1n, state that they have entered into an ~ the tams and conditiODl ofwbich are as follows: DBMS OF TRI Mi!lJIItMINI 1. The defendant agrees to give up the ri¡ht to be indicted by a srand jury and asreea to pleacl gwlty to Counts One and Two of the Crimiul lDformation (hereiDafter "IDfonnation1 iD this case 8DCl to persist with that plea. L The defendant agrees that this .Asleement will be executed by an Defeadant fbrther agrees that a authorized lep¡eaentative. 1 Case 6:06-cr-00064 I::>ocument 5 ,Filed in TXSD on OS/25/06 Page 2 of 13 Resolution cIu1y adopted by the BOIId ofDilectora ofTrafi¡ma AG, attached to this apeement U BxIu"blt 1, NpI'IIents that the sipatula on this A¡Nement by Trafiaura AG'. COUDBel are authoriJed by Trafipra AG'. Board ofDilectora. b. The defendant fUrther apees to pay immediately to the United States a fine in 'the amount of 58,000,000.00 and wammta it ha hind outside COUIUIel to conduct complianoe nmoaably capable of teduciDs the prospect of -conduct which viola$es U.S. law. c. Further, the defendant apees in addition to the tinc, to immediately forfeit, and hereby does forfeit to the United States the sum of $9,937,551.59 as provided iD the Agreed Order ofF'orfeitw:e at Sentencin¡ being filed inthis 'CIH. The defendant- agrees there is • '.. • • ••• '..:.:' : ••••• " , O ...., o' o o. ". hahlhty.· company, .:rbe:ná!lle of.the. cntJiy' IS: :' .' .' .' .' .' .'.".' '::::: . .'. :". '.': '::::: /: :::. - o' .;. : o' O • o' o .: . :: ... : .. :' ...~Q~'p'a~:· or C~)ilI!~~.®m~n~ (or a~. ~~~~'?~!O:" ~~f). .. abbrevlation that ltelectsto add for.useID Texas IS:: " .. ,' .: : o : .!:. "'_'. '': : .. ::' '.,' •~ -.. • o • : .: o . ;) • • "o' ;: : :: . .' . f,'~·:." ':' .. .: . .- ..:.' _..:.: . 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'Llabiti";"Com . ali " .:. ::. .. ". . '. I,· :Ii ,.,,':-.,:. :';"~".,..i .. : .' : . • : : ..'FiJing' 'Fee'• .$750 " : . • ;'.::~ .,':.":/:'.;'.='.:." '•.::'.:', " : :/.:'/:.~:~/.:.:.: :./:.:.:.::: ..: : ~.. ::': : ~···:_:-::·~.-:·:::::.::~-:·i.·.· :·:: · : :.: .. : ',:::,- 'A' . 'tl' . T'X' ·7"81·1·1·'J6·9~·.': ... : :. .. ':0'_ US,.P,. " ..• ~~ .~.:: '::.:', .:.; ", ':"512:463;5555:· .. :;' .• : : • • :: :.' ....... : ,'This'spacereseaicd.Tor:officeuse:: '::" .: ' . .':,".: . .' .. .': ·p.c);'Bái·i369·1 .. :.::: .. :.".:::".':: ' . . .• ,'. :. !; .;. '.': . '. . : .. .' . : I :':: : .:'. : ....: ..;. _.: '_'.'. '.: .'. :. ~:':. .- :'.::' ./. .' '.:'.:':. :'. :'.:_.: .:::::,' :,'.. :';.'_. .:' . :.: ..','.::.-.......:. :.:' .. ' .: / .; ~:. . .~.....'.- ". ' _'.':.:':.'; .-:' . ;.'. / .."~.' ./. ~·~i::~é e~;¡; ~~~~ i~ ~~.~~:~~~i¿·;~ 'iiB~~' ~e:'~~~~in~d·na~e/~~~r·\~hi~·~~·~~~~i¡l.~~~~:/. .. .. ~.' ." j.:; .:.": .' . : .. , and transactbuslne!ls m·Texas.Js:·· :".-.':. 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".' .....••.• , ~ .:. ·.'5~'t~{~f ~e :~~~·:·~:fili~~;·~~e:.~~~~j~~~d·;·~~i~~S· '~~t' ~e jorei~ >= .':': . I.' .: o o l. . . . '.' .: . C! . ~e~ra~'.e~p~oY6~.id~~~~~tI~~~~~·~nf~~~~i-?·_.I~·~~t av~~lable~.thiS:thn~~.:.:: .;!~:':'.:.::·::·:·I' ¡·.~:~· .'">: ': ::'.~ '.; .-: : ...••.•. ,'.• "". ;' .•. '. 1}mlt~}~i~iJ~~~~;':.:·:>·· :.'-'= /::' :~,~!.¡~Xt~~:~s.~:~~idJi~~~~.~iabii.i~.c~n~ári1~~c't ~q !aw~. ~~~~~!~i~~~~·~\~t$I~~~.~": .:'/.- :.' .::.:'_.='.' :.__.:' ' •• ',- . :.:6.i~:T~~;pug,~se·.oi 'p~~.:~( ~e.1imited .liability'co~piuiy:'~ it prop~~:!~~jnI~(i·ii~:.1P~::· .':":.' :;.' . transaction ófblisiness ¡exaure set forth· below: . .: '.,'...: . , .',' .- :<: • ~ ... : . ,.: . ' . ,'. '. . . . ,'.,'. ' . .'. • _: 1.0 .... " .. :<1- .'.: o 'I' -. • : • o :.. o" .... • o... • • • ,~o ¡11,' '; , .....; •• ....... o.: ...... : & o ... , • o • . .' :::: ~o PJII'JI~.or!li~.~:~ ~o ci~sase·I!l.~Y.laWrul.a.ct1vity¡ie¡mii~ ~iJ!lÍ'i!i:''-t:Oias ~.~~~~ ~j~iza!jon:t~' t . . . . .. . " .' .. . . .. '. " ': .. : .,' .... :. .' .. :,'..: .. :. . " .' .: :' : .- ·;. ;~r4~~:~~~;;:~~~~;:~·~~·r~~~·.~~~~·~~.;¡~~·~J~~~·7'-7;1~7~f~~~:o/.~ ~ .:~.: ': ~." :' :/: '~:'. .:' .' r.:'-.:: . . I .: .... :. ':. ·7.. :Th8:da~·qnW-~i~~.ih~.foreign entily.~!Cñ~~f:O·inJn.S!1'?ib.usin~s's'i~T~~~.Or~~e~·~iJ·~i9b~e~...:' . .'.' .::,:'.-. ·.f~.~}g.ñ.entily'-!iz:sq¥qj~9~db~sinc~sjlÍ;r~.ii~'- , ': (JPoAl.'~.A·LUJ.&, " ::: '.," .::' .. ::.',. . ¡- .. : .. : . :.: "L';': I: i:'t~!, .'.! : .. .- .. ,' . • : .':. : ' . .':.' 1JIfIII~. /A~¡"_,iJd.1'11pJi!Jr(m¡ /niIi1lct{IJfÍ$):: ... :. . ' ..... ~·'.:'.li·.¡~·· .: ...... '. . : :" ' .... " .. ' .,' ··.·¡·;·;·1·¡:/... ·frt .. '. ·\'ó·:;·· .' :._. .' ': .¡:8!~;~~.~jP~I·ó~cead~rc~?(·tJi~·!~í~d.1iáYtlity'conipa~y.i~:: ' .. ,- .!.;·l.'·,. "'1\;'::: '.: ::~:.- .:.'.:'.: .::': [ .' .. • o o ... o •• ..':. o '. • .: o .:.": • . ' '.' · ..-·::i.¡Qi-Mckinmitst,s(e.:l'SOO'&usto'n.fTx.·770'tO....: ..-: . : . o • .. .. 0° .. ~. . ~ _'. ¡o· oí _o' ' •• ~o.. ! I ¡--_. .' • J •• I, _. • /. , !.J k' • 01.. :., o : . t' • .: :: :.:.: :.;. :,':..:'.:.:.:'..: ...:. :.:.:: ,:'::;';':." " ; ,I _I' ~ ,oo. . 0-' : ' • : .. 1:: ':. '.; . .':.~ o . in ¡' o: • .. ••• :oo..~.~> 'or .I1 .;Ii • • •• I~ .... oI,~ .. J. o Ill! o r :U, ~ o • ,: ltí,;,,·1·:li"'.J~ ;. • :.l IJh. • "j. I" ",~~ ii, ,. ,rri!i'r-' ti ., ... , o ,II t!S~'lf"··' ¡'.,& •• .::.,,,. • Ii' • , 0:;, ..'1 [,r' :_ r~o"'1 ' . ti! ,III!,., LI' '•.:J, I j, .• (',I ff '., ,'" • ',' OR 'J,'h~ registered agent is an individual resident of the state whose name j~: " O:9B. ,': ~. ~I,. 0., ,'i':~~ -1 I .í • :"';' "J" .. \,'> I i·· . : MoL ,~«;:.; ,~c business address ofthc ....,"'~: LluIN41st #. ,~'1-r.:.-~S#.0 , t • ~ 1.' : TIC, '! I· lKt " .' • t!;"'l •. :\'~:7 :75201:'3136. .... ':'1999 9Jyan Sfreot, 8úite tl900. DlIIlas , ,: :;; StruIAddr,# • ,'~"'1 ~i'; " .. • registered agent and the registered office addresS:is~1}¡'t~:~ • SJa,,!,), i,PPC:~'.)h '. , CilJl i; ..I..... ,,,t! ··tl' • 'iO~'The entity hereby appoints the Secretary of State of Texas as ils agent for sei~ic~ofprOccss under the eírcumstances set forth in section 5.251 of the Texas Business Organizations Code. , :' " ,', ' :,. . . • .' : ': ,i.fTIie name and address ofeach governing person is: I • ~ ., .... I • •• ••••• ," " ~\\l .. I .' ... I .: ,':i'·s.:j . .. I Ij" t '.' 1 I , I ., .: ~<,l! .. -':;:,,,!; . ., .:.I~:, .... • , ¡ ft,: 'I't~; r'!::,.~ .. . . ,t '.1 I:' I, .... ·.1,10 r . li,\~' F.'I"jP'r.a~¡··' l!t ;". •. r.' , • f ,'" . NAM.EAND ADDJU:SS OJ'GOVEltNlNG PERSON (EnlcrllJcnP1llCotci1lu:ruWividlalll'anórpJ!Iz4ÍliIÍI,bufnathDlli.) " • ,', ,IF iNDIVIDUAL' , " '!", II', ' ':- r: , • .JI, .. " LMtNnmlf MJ. .'. ../.:' '\ .~ . . .. .t;.. . . \'Í ..·i~ :ii~. " CiIII , 't' .... I ,. .~ '¡¡,rr ~J:t!' . I 7 ~ "t, ••• M' • ' , •• £ !.. ~,.~.. r"', ; , .. ': • , , ~ : • ~ ,.I ,.I' .' . ! :. o.. ti· I .~ ~,~¡ ·~i';II:·{· , 111 •• Supple!Denflll ProvillionsJInformatlOD ••• • Toxt Am:·IThe auacllcd addatdum if8IIV_ is Inco ..... ratcd I!mln bv rell:rellce.) ...: :.. . '?';'"~~4'" . 4. ,ErrectiVClless ',!(,>¡:'1¡olft1:-' ' J'~rf; fI~~' -;:;1' J • • ofFding(ScleclolllluA.B.orc.) .' 4~ ~ , ;'.4~:t ". .: ':¡ .. '1~fu:';~,ir.J~i'.! ,', , • I ~~-, ~·~·~ •• .';.:~¡. n! '7:.~Af.·'·I~· , Á. g¡ This document becomes gffective when the document is filed by the secretk¡ ~f'State.. ~~'. ' , B. O This document becomes eneotive at a later date, which is not more tban ninety'I(90) days from :tbe dace of signing. The delayedeffective date is:, , .; I. O Thi; ~cument takes effect upon the ~ccur,:nce ora future event or fact, other ,lh~ t!~,:~: passage of time. The 90tJI day aftcr the date of signing is: " ! 1', • ,a; ':. The fotlowinn: event or fact will cause the documentto talce effect in the manner described below:: ,c,~ ,; I !,I;' II •. \ .... , Ex~UtiOIl . I ' .;,.J . I.,. to ; ':rlie) undersigned affirms that: the person designated as registered agent, has c~enfed: f I· 'I;~ •j:.... • Ii I 'i::\! t{!' : I' . ~i : IJ. 'l 01 lo!i~ •.•.. .' I I the ': l. appointinent.' The undersigned signs dlis document subject to the penalties impo~e.d by Jaw for the ' . submission of a mateñalJy false or fraudulent instrument and certifies UDder penalty of,perjwY that the ~dersjgned is authorized under the provjsions of law governingthe entity:to :e~~~::th~ ~~g . fnstrum~nt " .; lJl~ ::,::: é';' '¡ 'Date:' • ~ " '11I f, 'k?(S'" ti ~¡. Q~i,' r . 1 J ." i. , , : • " mll1·1I1Wl11J9"."!'I!'I"!o!'''~''', . ~.! ;:11' -í '.t! .' i ' . ,= ~ : .• ! -"i ... -'.:r.p:{~. J.' " • ..I " a • ' :~ '. .'. ,; " 1. .. ' lo. • ... ¡-'I' I ", •• ::' {·:I • I ••• Trafigura Trading LtC Member and Managers Ust . ' - _. "... ... r: ....;_.':'~~ .. - ...; ..... , .... :- Me~¡'e¡' ánd holder ofió,", of membership Interest . :.~~t.i~:t .~ Tr~~8ura US Inc. -.1401 Me Kinnev St., Ste. 1.5OD, Houston, TX77010 ·.;i~~; it;~i '1' • .. • ~~ • .;.! 1 t\ . t ". ~=-! ..l • '!, . :~: . Manalers ,', ... . Dlrec:tors ~ ,', . ... .... . : . '. s« ,ti I .:.. i l. j~ , ! I i , Jeffrey Kopp -1401 Me KinneySt., Ste.1500, Houston, lX77010 .' ,. t·· .... • 1 • 1 :.' ! ~;{t .:~:\;~ i.. '1: ,. ; .:• • Douglas pratt, Secretary - 1401 Me Kinney St., Ste. 1500, HOUstell, 1)( 770,10 It,t i 1'••_ -.it:,\.~~t....1~1i r; .. _';.;. 'l'. ·:./~~i ·J·i .". '1 t 1 .. 1 f I.·~;· '. ',r '{';!t .' ::..... ','1' . ~¡.' . •... Ih":. .. \" : .I-rl·~ . e., • • '.1'" ...··'S·.1 ' . ,'.,¡'Il i;;·~' ' \~'1r··1 ., ,il. ¡!~:. , I OffIcers i}' .'~I . : • 'I:1 : _ ",: •• " '. i;'1: .: -. Jet:frey Kopp, President -1401 Me Kinney St., Ste. 1500, Houston. TX 77010• . t . J: i: ':. h f. I .. ,~ i.' : "D~u8Ias pratt, Secretary· 1401 Me Klnnev St., Ste. 1500, Houston, Tl( 77010 '}~(t;, : ~:" ~i .' :, -f !~ í1:. ~II:.;~~~ .i!t: .:." .: Rodney Malcolm,Treasurer - 1401 Me Kinney St., Ste. 1500, Houston, TX 77010 ,v'i(, ~¡. 'r .,r:Ú:',,¡i¡I~,. ' ;.: ~I;" I, ~J' •• ' .; ih'¡I"'}!;~1.5 • '" •• ,Ii 'I (! ¿.;, .," .' '. ,r,?'. i ",tr . . ::I:t('II"~l! \~~!(i' ~: • " ..,~'''',:i .• ," . I~I:. ,iJ' '.t 1;.1, I. I I .: .', : ...... ~ I' ..... ... ~ .. .. jl~ , ·~,.li·~ Ir""" ~!i ~ I t . .· 4~ ." .a.!.... " \'!'o' From: To: Ce: Subject: Date: Pat Clements "Bachman, Roddy caY"; Bradley K McKitrjck (b@dley k,mckitrick@uscg,mil); Wade Morefield (wade,morefiled@dot,gov) Dawn Gardiner; "Christine willis@fws goy" Texas Gulf Terminals Crude Oil Export Deepwater Port Application: USFWS response to request for comments on the application completeness Friday, July 27, 2018 11:30:00 AM Dear Sirs: [Roddy Bachman, Bradley McKitrick, Wade Moorefield] The following is in response to an application being reviewed jointly by the U. S. Coast Guard (USCG) and Maritime Administration (MARAD) for a deepwater port project proposed by Texas Gulf Terminals, Inc. (TGTI). Per your instructions in your letter to the U.S. Fish and Wildlife Service (Service), dated July 13,2018, we are submitting the following comments and recommendations on the documents you have provided. Because you requested comments by July 27, 2018, the Service reviewed only the documents most pertinent to the Service's authority and expertise. The Service acknowledges that some of our questions and comments may be answered in documents we were not able to review due to time constraints; therefore, we would appreciate follow-up communication from you to locate the information in the materials. Additionally, your email to us, dated July 13,2018, contained a number of questions regarding the mailing list you generated for the TGTI project. These questions, and our responses are as follows: 1. Do you wish to remain on the email distribution? Yes, please. 2. Do you also wish to receive document distributions (DEIS, EIS, etc.) or just copied on emails? Please provide documents on cd's as well as including the Service in any email communications. We request that environmental documents for fish and wildlife resources and threatened and endangered species also be provided in printed form. We will be glad to discuss with you further which specific documents the Service would like to receive in printed format. 3. Who else in your organization should be included in this list? Please provide full contact info including email, phone and mailing information. The POC with the Service's Ecological Service Field Office in Corpus Christi TX will be Pat Clements, who is already on the organization list. Please correct the phone number listed to 361-225-7316. If the POC should change, the Service will contact you immediately. 4. Is there a single point in your office that should receive the document mailings and handles your internal distribution? (This is appreciated). Document mailings can be sent directly to Ms. Clements. FYI and for future planning: 1. Friday 27 July 18: Agency comments due. Noted. 2. Monday 30 July 18: By the Deepwater Port Act the USCG and MARAD must deem the application complete or incomplete. Noted. Please contact the Service with your decision regarding the application. 3. The application is distributed to additional Federal Agencies and appropriate Texas State and Local Agencies and to the Governor of Texas. Noted. The Service assumes that this item, and the following ones occur only if the application is determined to be complete. Please let us know if this assumption is correct. 4. Friday or Monday 3 or 6 Aug 18: MARAD issues FR Notice of Application and the application is posted on the Federal docket. Noted. 5. Friday or Monday 10 or 13 Aug 18: MARAD issues FR Notice ofIntent (to publish EIS) initiates a 30 day scoping period and will include logistics for scoping meeting(s). Please notify the Service when the NOI is issued. 6. Late AugustlEarly September: Scoping meeting(s) in Texas. Please notify the Service of these proposed dates as early as possible so we can incorporate these dates into our calendar. GENERAL COMMENTS: It is the understanding of the Service that rather than detailed review and comments on each document, the USCG is seeking input on major deficiencies or areas of concern regarding the application and supporting information that was provided for review. The Service reviewed the following sections and appendices: Volume I, Appendix A [Project figures], Vol. I Appendix K [USACE Permit Application]; Volume II, Introduction, Evaluation Framework and Summary ofImpact Revised, Vol. II Appendix C [Wetland Delineation - Inshore], App. D [Wetland Delineation - Onshore], App. E [Benthic Survey Report], App. F [Submerged Aquatic Vegetation Impact Analysis], App. H [Threatened and Endangered Species Report], App. I [Threatened and Endangered Species Report - Onshore], App. J [Piping Plover and Red Knot Survey Report]. For the purposes of this initial response, the Service's primary concerns are regarding impacts of the proposed project on threatened and endangered species and critical habitat, and impacts to fish and wildlife resources including special aquatic sites. With regard to threatened and endangered species, the Service recommends that a biological assessment (BA) will need to be prepared covering the entire project area from the Onshore Storage Facility in Nueces County to the Single Point Mooring Buoy System in the Gulf of Mexico. As currently available in the project documents, this information is spread across several reports. Impacts of the project on listed species and critical habitat should be analyzed for the entire project, not project segment by project segment. As presented in the various reports, a determination of either "no effect", or "may affect, not likely to adversely affect" (MANLAA) has been applied to each of the species analyzed. Although the USCG has not requested concurrence on the determinations that were made for the species in the project area, at this time, the Service could not concur with all of these determinations if such a request was made. The Service has specific concerns with the data that was gathered for the piping plover, red knot, and sea turtles, as it presents an incomplete picture for the anticipated construction and operations impacts of the project. The Service has additional questions regarding several other species that could be or are known to occur in the project area and recommends that the applicant coordinate with our office prior to or during the development of a BA for the project. The conclusions of a final BA should provide the USCG with the information to decide whether formal consultation is appropriate. With regard to the impacts of the project during construction and operation on coastal habitats, including special aquatic sites, the Service is concerned that the reports conclude that all impacts are temporary. Of great concern are the impacts to sea grass beds and unvegetated tidal flats, identified in the documents, as temporary but with no restoration plans that would support such a determination. Both of these habitats have been designated as special aquatic sites. Additionally, the proposed impact to 9.79 acres of sea grass beds from trenching would, at a minimum, result in an extended temporal loss even if successful restoration work could be applied to the impact areas. Unvegetated tidal flats might not restore simply by the replacement of excavated material into pipeline trenches depending on their location within the tidal system. Impacts to habitats can also occur from access by equipment and staging and stockpiling of materials for the project. These secondary impact sites and actions should be included in the project description and analysis, including the U.S. Army Corps of Engineers (USACE) permit application. The Service recommends that a mitigation plan be drafted and circulated to the resource agencies and the USACE for review and comment. The mitigation plan should include specific analysis of the impacts of the project identifying how the selected route avoids and minimizes impacts to important coastal habitats, how unavoidable impacts will be mitigated by restoration or replacement, and where restoration is to be applied a monitoring plan for that work. The Service hopes that the above comments are sufficient for the USCG needs for making a determination of completeness of application for the TGTI Project. If you have additional questions, please contact Pat Clements at pat_ clements@fws.gov or 361-225-7316. Pat Clements Ecological Services Field Office U.S. Fish and Wildlife Service P.O. Box 81468 Corpus Christi, TX 78468-1468 4444 Corona Dr., Suite 215 Corpus Christi, Texas 78411-4300 Direct line: 361-225-7316 Main: 361-994-9005 Fax 361-994-8262 -----Original Message----From: Bachman, Roddy CCIV Sent: Friday, July 13,20189:22 AM To: terri.thomas@boem.gov; greg.kozlowski@boem.gov; Perry.Boudreaux@boem.gov; quazLislam@boem.gov; casey.rowe@boem.gov; t.j.broussard@bsee.gov; Lars.herbst@bsee.gov; Jarvis.Abbott@bsee.gov; Schaedle.candi@Epa.gov; tomiak.robert@epa.gov; houston.robert@epa.gov; lawrence.rob@epa.gov; mohr.ashley@epa.gov; okpala.maria@epa.gov; magee.melanie@epa.gov; hayden.keith@epa.gov; Larsen.Brent@epa.gov; keeler.barbara@epa.gov;jones.bruced@epa.gov; alvarado.tina@epa.gov; gillespie.david@epa.gov; martinez.maria@epa.gov; Kaspar.Paul@epa.gov; Douglas.Cotton@ferc.gov; jackie.rolleri@noaa.gov; katherine.renshaw@noaa.gov; rachel.lipsy@noaa.gov; kerry.kehoe@noaa.gov; David.Kaiser@noaa.gov; roy.crabtree@noaa.gov; noah.silverman@noaa.gov; david.bernhart@noaa.gov; virginia.fay@noaa.gov; kelly.shotts@noaa.gov; Karla.Reece@noaa.gov; michael.tucker@noaa.gov; Rusty .Swafford@noaa.gov; Mark _ Spier@nps.gov; kenneth.1ee@dot.gov; joseph.sieve@DOT.gov; Obeidi, Zaid (PHMSA) ; Patrick.Gaume@dot.gov; mary.mcdaniel@dot.gov; robert. w .heinly@usace.army.mil; matthew .kimmel@usace.army .mil; tomas.dominguez@tx.usda.gov; pat_ clements@fws.gov; Christine _willis@fws.gov; Knoll, Laura B CIV ; Pierno, Michael R LCDR ; Detweiler, George H CIV ; Brown, Margaret A LCDR Cc: Brady, Sean T CAPT ; Nabach, William A LCDR ; Borland, Curtis ; McKitrick, Bradley CIV ; Tone, Kevin P CIV ; Vasanth, Pavagada N CIV ; Yvette Fields ; 'wade.morefield@dot.gov' ; Linden Houston (linden.houston@DOT.gov) ; kristine.gilson@dot.gov; Pucci, Michael (MARAD) ; thomas.shepherd@dot.gov; Timothy.Feehan@tetratech.com Subject: [EXTERNAL] Texas Gulf Terminals Crude Oil Export Deepwater Port Application: Heads-Up and Introduction Good morning Folks I've worked with many of you on deepwater port applications in the past but some of you are new to this or to me. My name is Roddy Bachman and I am the US Coast Guard Project Manager for Deepwater Ports in the Vessel and Operating Standards Division. Much of this email distribution is either based on the last deepwater port project or information provided by the applicant from their pre-application meetings with your agencies, so it may need some tweaking. The Coast Guard and Maritime Administration (MARAD) jointly process deepwater port applications for the import or export of natural gas or oil including the NEPA review. To assist us in this process, Tetra Tech is our 3rd party environmental consultant on this project. This is a heads-up that you should be receiving CDs THIS MONDAY for a DEEPWATER PORT APPLICATION from TEXAS GULF TERMINALS, INC for a port to export crude oil located approximately 12.7 nm off the coast of North Padre Island with pipelines from an onshore terminal facility in Nueces County near Corpus Christi, TX. Per the attached letter from Mr. Curtis Borland, Attorney Advisor, USCG Vessel and Facility Operating Standards, we are requesting your comments on the application completeness. The Deepwater Port Act (DWPA) has a very aggressive statutory timeline of a record of decision within 356 days of application submittal (including the NEP A review). This is why we are asking by Friday 27 July, you provide input as to if this application contains sufficient information to continue the application review process and initiate the NEP A review and development of an EIS. Naturally your review and comment opportunities as well as requests for additional information if needed will continue through the NEP A process. This is a limited Federal agency review established by an MOU for the DWPA. Additional Federal, State and local agency participation will come once the application is deemed complete. Please also note that until this application is deemed complete by the Coast Guard and MARAD, it is NOT FOR PUBLIC INFORMATION. This is in respect for the applicants business confidentiality. Please pass this information to others in your organization who need it and Please review the mailing list attached to the letter for your organization and let me know any changes or requests regarding: 1. Do you wish to remain on the email distribution? 2. Do you also wish to receive document distributions (DEIS, EIS, etc.) or just copied on emails? 2. Who else in your organization should be included in this list? Please provide full contact info including email, phone and mailing information. 3. Is there a single point in your office that should receive the document mailings and handles your internal distribution? (This is appreciated) FYI and for future planning: 1. Friday 27 July 18: Agency comments due 2. Monday 30 July 18: By the Deepwater Port Act the USCG and MARAD must deem the application complete or incomplete. 3. The application is distributed to additional Federal Agencies and appropriate Texas State and Local Agencies and to the Governor of Texas 4. Friday or Monday 3 or 6 Aug 18: MARAD issues FR Notice of Application and the application is posted on the Federal decket. 5. Friday or Monday 10 or 13 Aug 18: MARAD issues FR Notice ofIntent (to publish EIS) initiates a 30 day scoping period and will include logistics for scoping meeting(s) 6. Late AugustlEarly September: Scoping meeting(s) in Texas Also "hopefully" today or Monday I will also be sending you the application by AMRDEC SAFE, which is a large file exchange system. You will receive an email with a link and password to download the application files directly. This may require a couple iterations of emails, links and passwords as the system is limited to 25 files a posting and the application has many more than that. I say "hopefully" because this will be my first try using it and it is Friday and ... Please contact me or Brad McKitrick, at Bradley.K.McKitirck@uscg.mil or (202) 372-1443, the Coast Guard Environmental Protection Specialist on this project, if you have and questions specific to the project or in general on the Deepwater port application process or wish to discuss anything. As always we appreciate your assistance and expertise in this process and I look forward to working with you. (And much more to come). Thanks and have a great weekend Roddy Roddy C. Bachman Project Manager, Deepwater Ports Vessel and Facility Operating Standards CG-OES-2 U.S. Coast Guard Headquarters Office: 202-372-1451 Cell: 540-850-2228 Email: Roddy.C.Bachman@uscg.mil COMMANDANT (CG-OES-2) ATTN: VESSEL AND FACILITY OPERATING STANDARDS DIVISION US COAST GUARD STOP 7509 2703 MARTIN LUTHER KING JR A VE SE WASHINGTON, DC 20593-7509