Limetree Bay Refining has challenged the U.S. Environmental Protection Agency’s 60-day shut-down order, protesting that the federal agency lacked legal authority to issue it and throwing into question whether the troubled refinery will comply with its terms.
The emergency order issued on May 14 under the Clean Air Act required Limetree to pause all refining operations because of imminent endangerment to the public. Limetree had idled its operations on May 13 after a fire caused by an over-pressured coker triggered the release of liquid oil from the No. 8 flare, spattering St. Croix neighborhoods from Clifton Hill to Frederiksted.
In a May 17 letter addressed to Caribbean Environmental Protection Division Director Carmen Guerrero, Limetree CEO Jeffrey Rinker protested the order’s requirements, “such as using auditors who have no familiarity or affiliation with the refinery or any entity associated with the refinery to perform compliance and unit/system audits, and including auditing items that are unrelated to the alleged excess emissions events.”
As of May 17, Limetree was still evaluating the order and had not determined whether it intends to comply. “Limetree does not agree that the order is lawful,” Rinker wrote.
The EPA exceeded its authority, Rinker said, because the refinery had already been shut down when the order was issued, alleviating any immediate threat to public health. Under the circumstances, he argued, the EPA must bring its case to district court.
If so, the Limetree order could be significantly stalled by the speed of the St. Croix district court, which, according to Westlaw data, is one of the slower in the country.
But according to Judith Enck, the former EPA administrator who oversaw the refinery when it was owned by Hovensa, the EPA has clear legal authority to do everything it’s requiring in the order and more.
“Limetree has done a terrible disservice to the people of St. Croix, and they should just listen to the EPA and not fight them on this,” Enck told the Source. “In fact, I think EPA is going pretty easy on them. They have some very serious operational problems at the facility. The fact that they shut down doesn’t mean much because it was inevitable. I think it needs to be more than two months.”
Rinker protested the order for pausing the entire refining operation instead of just the processes causing the emissions and oil sprays. The Clean Air Act “enables EPA to issue an emergency administrative order ‘only in an extremely narrow context,’ he wrote, citing another case.
Limetree has consistently denied that it is the source of the toxic odors that hundreds of St. Croix residents have complained of in recent weeks, and Rinker’s letter was no different.
“The order contains numerous factual errors that form the basis for EPA’s conclusion that there is an imminent and substantial risk to human health or the environment,” he wrote. “For example, the description of the ‘First May Incident’ … fails to consider other obvious potential sources of the odor investigated by the government at the time.”
Coincidentally, the EPA on Thursday reported an uncovered sewer manhole located on V.I. government property near one of its monitoring stations, emanating “strong H2S-like odors.” A sampling tube lowered into the manhole, confirmed elevated hydrogen sulfide. A V.I. Consortium headline immediately reported, “The EPA has found source of odor on St. Croix.”
“As you can see from our description on the webpage, EPA does not make a declaration about ‘sources’ of odors on St. Croix. We described what we saw and measured,” an EPA spokesman said.
“Do they think we are stupid people?” a dubious Kijah Thomas commented on the headline. “They say a manhole. How long was this manhole uncovered?” … One little manhole would not produce such a high concentration smell all the way to the west side.”
The Source posed the question – who opened the manhole cover on its property, for what reason and when – to Government House, Department of Planning and Natural Resources, and Department of Public Works officials but did not receive a reply.
Asked if she will drop her class-action lawsuit against Limetree because of the manhole discovery, attorney Lee Rohn said “absolutely not.”
“The truth is the EPA’s air quality monitors show continuous Tier 1 and Tier 2 hydrogen sulfide coming from the refinery on a daily basis,” Rohn said. “No, we won’t be dropping our lawsuit. Yes, we will protect people from being gassed and having their homes damaged by the refinery’s irresponsible operation.”
Rinker’s letter protested what it called the “overbroad and unreasonably cumbersome” audit order of its processing units, throwing into question whether Limetree will comply.
On May 19, without proper public notice, he met with V.I. senators at Limetree’s St. Croix headquarters and reportedly advised legislators that an independent investigator is troubleshooting the refining processes.
“Limetree has already planned to perform audits to ensure that its equipment is safe and can be operated without posing a risk to human health or the environment,” Rinker wrote to the EPA. “In contrast, the order’s requirements for performing the proposed audits are unnecessarily complicated and could impede the progress of the investigations.”
A contractor with institutional knowledge of the facility would be better able to assess its integrity and compliance, he said.
Enck called the argument “a stretch.”
“This is one of the strongest letters the EPA has written on the Clean Air Act,” she said. “A third-party audit in these situations is common. To get a five-page response from Limetree on a matter so serious shows weakness.”
To avoid a civil action, Limetree’s letter promised a proposal for a voluntary audit program seeking terms Limetree and the EPA can mutually agree to.
Meanwhile, the refinery continues to flare gases, as resident videos shared with the Source as recently as Friday show.
And while refining operations are paused, certain “shared services” need to run the terminal and storage side of the business continue, Rinker’s letter says.
“There is no question these problems are coming from a newly restarted refinery,” Enck said. “The EPA has the authority, if it wants, to physically assign staff or a contractor to St. Croix to oversee the refinery on-site indefinitely, and frankly, I think they should.”