U.S. District Court Judge Mark Kearney told representatives from the V.I. Water and Power Authority and U.S. Environmental Protection Agency Monday that he will issue an order putting the utility’s fraught relationship with generator manufacturer Wartsila “at issue.”
“I want to see what’s happening there,” he said during a consent decree status conference held over the videoconferencing platform Zoom. “I’m going to require some reports there … that’s really the principal focus. If I can get Wartsila cleaned up and figure out what’s going on here, we can move forward here.”
The comment came after Kearney also signaled interest in bringing other WAPA stakeholders to the courtroom, including the V.I. Office of Disaster Recovery and the company tapped to handle the territory’s FEMA-funded power plant replacements, RG Engineering. At one point, he said it seemed as if there was a “logjam” because that procurement was handled through ODR rather than the utility.
“My view is: I need to do some more federal judge coercion of our friends at Wartsila, and maybe RG and maybe ODR, and figure out why we’re not moving things forward — without being heavy-handed — to understand what’s going on,” he said.
Monday’s hearing came three months after representatives from WAPA and the U.S. Environmental Protection Agency appeared virtually before Kearney for the first time to update the visiting judge on the utility’s decade-old federal consent decree. During that hearing, Kearney got up to speed on the various challenges plaguing generators at St. Thomas’s Randolph Harley Power Plant before ordering the utility to contact vendors about fixing maintenance issues that have hampered WAPA’s compliance with federal emissions standards — and its ability to provide reliable electricity to St. Thomas and St. John.
In April, Kearney also floated the idea of issuing a court order compelling Wartsila to appear for future consent decree hearings. Four of the Finland-based manufacturer’s generators at the St. Thomas plant have so far failed to run on liquefied petroleum gas, which is cheaper and more efficient than diesel, and plant superintendent Kevin Harrigan said in April that the manufacturer hadn’t yet offered a timeline for fixing faulty emissions controls impacting all seven of its units on St. Thomas. Kearney ultimately decided to let WAPA reach out to Wartsila and attempt to resolve the maintenance dispute themselves.
WAPA General Counsel Dionne Sinclair reported in a June 5 letter to the court that the utility “has made incremental progress toward resolving the compliance issues” discussed during the April hearing. More recently, V.I. Public Services Commission Chair David Hughes characterized the generators as “probably an ill-advised purchase.”
On Monday, Harrigan said the manufacturer had been on site several times to address fuel issues impacting the four, newer Wartsila units, which he said have also developed problems running on diesel. Kearney asked about the impact on WAPA customers.
“The cost is very — it’s unmanageable,” Harrigan said, adding later that the utility is struggling to maintain its light fuel oil inventory. Recent outages were attributed either to not having enough fuel or failing fuel pumps meant for liquefied petroleum gas.
According to Robert Smith, WAPA’s outside counsel for environmental matters, the light at the end of the tunnel for customers in terms of stable power generation will be what WAPA personnel internally refer to as “the temporary FEMA fix.”
“That is to get the new units — the first phase of the new units we want through FEMA — in place as rapidly as possible so that we can no longer be in a position where we have to operate these units in order to maintain adequate power for the island,” he said.
The utility has also struggled to engage Wartsila regarding emissions controls on all seven of its units at the Randolph Harley Power Plant. In her June 5 letter, Sinclair wrote that despite “numerous written and verbal requests, VIWAPA has not received a formal response from Wartsila regarding a repair plan or anticipated timeline for restoring the Vocsidizer system,” referring to the emissions control system.
“The lack of communication has increased the urgency of this compliance issue, as the continued outage of the system has contributed to emissions reporting deviations,” she wrote at the time.
On Monday, Harrigan and the utility’s project management director, Maxwell George, said they have since met with Wartsila’s operations and maintenance team, who in turn said they were in talks with the supplier of the emissions control system, Megtec.
“There’ll be an evaluation, and then they will get back to us detailing … what the correction is to get the units working and a potential timeline to get them back in working order,” George said. After Kearney asked whether the delay will affect Virgin Islanders’ day-to-day power availability, George said it was just a matter of complying with the consent decree’s emission requirements.
Harrigan later told the judge that Megtec visited the territory to conduct an assessment in February before Smith added that “there was a report done about what their findings were — and a report that we have been requesting for a great deal of time now.”
“And Wartsila has been unwilling, or at least has not, given us a copy of that report,” he said. “Am I correct?”
Harrigan conceded that while a report was given to Wartsila, it hasn’t been shared with the utility.
“Why do you think that is, Mr. Harrigan?” Kearney asked. “That doesn’t make any sense.”
Harrigan said WAPA personnel haven’t been able to figure out why the report hasn’t been shared with them and speculated that the report potentially highlighted an engineering flaw. Smith added that there was a concern “as to whether or not they may be finding that the technology they employed is not viable.”
After questioning EPA attorney Myles Flint about the federal government’s position, Kearney said the idea that the utility’s noncompliance has been caused by Wartsila’s unattended maintenance obligations “wouldn’t really be a defense.”
“It wouldn’t be a defense if you had a principal on a contract or a consent decree, [and] they said ‘you know what? I can’t do this because my agent is not doing their job.’ Well, typically, get your agent in line and do your job. That would be sort of law school 101 stuff,” he said.
Kearney later acknowledged that the emissions issue “may not be the most pressing to the person who’s losing power every weekend, but it is certainly pressing for purposes of enforcing a consent decree.”
