Conservation Law Foundation, Inc. v. Shell Oil Products US et al

COMPLAINT (filing fee paid $ 400.00, receipt number 0103-1119559), filed by Conservation Law Foundation, Inc.

District of Rhode Island, rid-1:2017-cv-00396

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8 PageID #: 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND _______________________________) Conservation Law Foundation, Inc.,)) C.A. No. ______ Plaintiff,)) COMPLAINT and JURY DEMAND v.)) Shell Oil Products US,) Shell Oil Company,) Shell Petroleum, Inc.,) Shell Trading (US) Company,) Royal Dutch Shell plc, and) Motiva Enterprises LLC,)) Defendants.) _______________________________) CONSERVATION LAW FOUNDATION'S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES Plaintiff Conservation Law Foundation, Inc. ("CLF"), by and through its counsel, hereby alleges: INTRODUCTION 1. This is a civil suit brought under the citizen suit enforcement provisions of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251, et seq. ("Clean Water Act" or "CWA"). Plaintiff CLF seeks declaratory and injunctive relief, civil penalties, and other relief the Court deems proper to remedy Defendants' Shell Oil Products US, Shell Oil Company, Shell Petroleum, Inc., Shell Trading (US) Company, Royal Dutch Shell plc, and Motiva Enterprises LLC (hereinafter, collectively, "Defendants" or "Shell") violations of federal law, which include Shell's past and ongoing failures to comply with Rhode Island Pollutant Discharge Elimination System ("RIPDES") Permit No. RI0001481, issued February 14, 2011 and effective April 1, 2011 (expired April 1, 2016 and administratively continued) ("the Permit") and the Clean Water Act. 8 PageID #: 2 2. These violations of federal law have occurred and are occurring at Shell's Providence Terminal, formerly the Motiva Enterprises LLC Providence Terminal, a bulk storage and fuel terminal located at 520 Allens Avenue in Providence, Rhode Island (hereinafter "Providence Terminal"). JURISDICTION AND VENUE 3. CLF brings this civil suit under the citizen suit enforcement provisions of Section 505 of the Clean Water Act, 33 U.S.C. § 1365. This Court has subject matter jurisdiction over the parties and this action pursuant to that statute and 28 U.S.C. § 1331 (providing district courts with original jurisdiction over an action arising under the Constitution and laws of the United States). 4. Venue is proper in the U.S. District Court for the District of Rhode Island pursuant to Section 505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1), because the source of the violations is located within this judicial district. 5. On June 28, 2017, CLF notified Shell of its intention to file suit for violations of the Clean Water Act, in compliance with the statutory notice requirements set forth in 33 U.S.C. § 1365(a)(1), and the corresponding regulations at 40 C.F.R. § 135.2. Letter to Shell, from A. Moses, Vice President and Director, CLF Rhode Island (June 28, 2017) (hereinafter, "CLF's Notice Letter"). A true and accurate copy of CLF's Notice Letter (without attachments) is appended hereto as Exhibit A. 6. More than sixty days have elapsed since CLF's Notice Letter was served on Shell, during which time neither the Environmental Protection Agency ("EPA") nor the Rhode Island Department of Environmental Management ("DEM") has commenced and diligently prosecuted a court action to redress the Clean Water Act violations alleged in this complaint. See 33 U.S.C. § 1365(b)(1)(B). 2 8 PageID #: 3 7. Further, neither EPA nor DEM have taken administrative action to redress the Clean Water Act violations alleged in this complaint. PARTIES Plaintiff 8. Plaintiff CLF is a 501(c)(3) nonprofit, member-supported organization dedicated to the conservation and protection of New England's public health, environment, and natural resources. It is incorporated under the laws of Massachusetts with its principal place of business at 62 Summer Street, Boston, MA 02110. CLF operates in Rhode Island at 235 Promenade Street, Suite 560, Providence, RI 02908. CLF has over 4,600 members, including over 200 members in Rhode Island. CLF has long worked to protect the health of New England's waterways, including addressing the significant water quality impacts of industrial and stormwater pollution. 9. CLF members live near, recreate on, and regularly visit the road and waters near Shell's Providence Terminal, including, but not limited to, the Providence River, the Providence Harbor, and Narragansett Bay. CLF members use and enjoy these waters for recreational and aesthetic purposes, including, but not limited to, boating, swimming, fishing, observing wildlife, and sightseeing, and intend to continue to engage in these activities in the future. 10. CLF and its members are harmed and threatened by Shell's acts and omissions at the Providence Terminal and its violations of environmental laws and regulations. 11. CLF and its members are directly and indirectly exposed to or otherwise harmed by, and have an interest in preventing, Shell's pollutant discharges from the Providence Terminal. Among other pollutants, these discharges contain toxic pollutants known to be harmful to humans and aquatic life, to persist in the environment, to bioaccumulate in fish and shellfish, and to cause harm to water quality and living marine resources. These discharges of pollutants, including toxic 3 8 PageID #: 4 pollutants, result from Shell's on-going activities at the Providence Terminal and its failure to comply with the Permit. 12. CLF and its members are concerned that Shell's pollutant discharges, including toxic pollutant discharges, harm the ecosystem and human use and enjoyment of the Providence River, the Providence Harbor, and Narragansett Bay. CLF and its members are also deeply concerned about health impacts resulting from exposure to pollutants from the Providence Terminal when they are present in the surrounding environment. For these reasons, Shell's violations have diminished and continue to diminish CLF's members' use and enjoyment of the environment surrounding the Providence Terminal. CLF seeks, on behalf of its members, to prevent and remedy these ongoing injuries, compel compliance with the Permit, and seek restoration of affected marine resources with this action. 13. CLF and its members are also concerned about, and have an interest in eliminating the risk from, the pollutants from the Providence Terminal that will wash into the Providence River, the Providence Harbor, and Narragansett Bay, as well as into nearby communities and ecosystems, when the Providence Terminal is flooded by increased and/or more intense precipitation, increased magnitude and frequency of storm events, increased magnitude and frequency of storm surge, and/or sea level rise. 14. Shell has not taken sea level rise, increased and/or more intense precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surges—all of which will become, and are becoming, worse as a result of climate change—into account in its Clean Water Act-required and enforceable stormwater pollution prevention plan ("SWPPP"). 4 8 PageID #: 5 15. Shell has knowledge of, and has validated, the scientific certainty that these impacts are occurring or will occur. 16. As a result of Shell's failure to account for these impacts, CLF and its members are placed directly in harm's way and have no assurance that they will be protected from pollutants released and discharged from the Providence Terminal as a result of these impacts. Defendants 17. Defendant Shell Oil Products US was founded in 1995 and is headquartered in Houston, Texas. Shell Oil Products US is a wholly-owned subsidiary of Royal Dutch Shell plc that markets and distributes crude oil and petroleum products. 18. Defendant Shell Oil Company, founded in 1912 when the Royal Dutch/Shell Group founded the American Gasoline Company, is headquartered in Houston, Texas. Shell Oil Company is a wholly-owned subsidiary of Royal Dutch Shell plc that produces oil and gas in deepwater in the Gulf of Mexico, heavy oil in California, and oil and gas from shale in Pennsylvania. 19. Defendant Shell Petroleum, Inc. was founded in 1984 and is headquartered in Houston, Texas. Shell Petroleum, Inc. is a wholly-owned subsidiary of Royal Dutch Shell plc that produces, refines, and markets petroleum products and chemicals. 20. Defendant Shell Trading (US) Company became operational in 1998 and is headquartered in Houston, Texas. Shell Trading (US) Company is a wholly-owned subsidiary of Royal Dutch Shell plc and is one of the world's largest energy trading companies, operating as the market interface of Royal Dutch Shell's US companies and affiliates. 21. Defendant Royal Dutch Shell plc is the parent company of the Shell group, a multinational oil and gas corporation incorporated in England and Wales and headquartered in The Hague, The 5 8 PageID #: 6 Netherlands. The Royal Dutch Shell Group formed in 1907 upon the merger of the Royal Dutch Petroleum Company and the Shell Transport and Trading Company. 22. Defendant Motiva Enterprises LLC, a wholly-owned affiliate of Saudi Aramco, is a fuel refining, distribution, production, and marketing company headquartered in Houston, Texas. Motiva Enterprises LLC formerly operated the Providence Terminal. Motiva Enterprises LLC was a joint venture between Royal Dutch Shell plc and Saudi Aramco (through its subsidiary Saudi Refining, Inc.). Shell formally announced the completion of the dissolution of Motiva Enterprises LLC on May 1, 2017. See Shell Global, Shell Announces the Completion of Transaction to Separate Motiva Assets (May 1, 2017), http://www.shell.com/media/news-and-media- releases/2017/completion-transaction-to-separate-motiva-assets.html. Per the dissolution agreement, Shell maintained control over the Northeastern region of the U.S., including ownership of the Providence Terminal. Id. References to Shell herein include any predecessors, successors, parents, subsidiaries, affiliates, and divisions of Shell, including Motiva Enterprises LLC. 23. Upon information and belief, Shell is the world's seventh largest company by 2016 revenues and the second largest oil and gas company. Shell Oil Company, Royal Dutch Shell plc's largest business, held the highest 2016 market value on the London Stock Exchange, with a market cap of 193 billion pounds (£). 24. Shell is a large producer, refiner, distributor, and marketer of petrochemicals. Upon information and belief, Shell produces approximately 3.7 million barrels of oil equivalent ("BOE") every day. 25. Upon information and belief, Shell's "proved reserves" (the amount of oil and gas that Shell could presently extract based on current technology and capabilities) as of December 31, 2016, are approximately 13.248 billion BOE, a 2.877 billion BOE increase (before production) 6 8 PageID #: 7 from the year before. With interests in twenty-two oil refineries and operations in over 70 countries, Shell has a combined daily refining capacity of 2.9 million barrels. 26. Upon information and belief, Shell Oil Products US operates the Providence Terminal and holds the Permit for the Providence Terminal. STATUTORY AND REGULATORY BACKGROUND Clean Water Act 27. Congress enacted the Clean Water Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To accomplish that objective, Congress set as a "national goal that the discharge of pollutants into the navigable waters be eliminated []." Id. 28. Accordingly, Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), prohibits the discharge of any pollutant into waters of the United States from a point source, unless the discharge complies with various enumerated sections of the Act. 29. Among other things, Section 301(a) prohibits discharges not authorized by, or in violation of, the terms of a valid National Pollutant Discharge Elimination System ("NPDES") permit issued pursuant to Section 402(p) of the CWA, 33 U.S.C. § 1342(p). 30. Section 502(14) of the Clean Water Act defines "point source" to include "any discernible, confined and discrete conveyance