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The suit
filed on Oct. 18 in U.S. District Court in Wilmington asks that
the company be fined up to $1,843,500 for 67 alleged violations
of the permit governing use of the flare at the refinery.
As first
reported by Delaforum, it also asks that the company be required
to speed up the process of installing a sulfur-recovery unit to
eliminate the need to flare hydrogen sulfide except in limited
circumstances. It seeks an injunction against future permit violations and asks
that the company be legally required to install a
sulfur-recovery unit "as soon as possible."
It
further charges that "neither the federal Environmental
Protection Agency nor the [Delaware] Department of Natural
Resources & Environmental Control have diligently prosecuted a
civil or criminal action to redress these violations." The state
agency had not responded to a Delaforum request for comment as
this article was being prepared.
Davis
said that the consent order, entered into last May, evidently
satisfied the Clean Air Council. He said he based that
conclusion on a public statement reportedly made then on behalf
of the organization. John Kearny, Delaware director of the Clean
Air Council, flatly denied that. He said the council was
responsible for having the agreement's deadline for Sunoco to
comply shortened from five to four years and that the council
formally notified Sunoco of its intent to sue after the
agreement was made public.
Kearny said earlier
that the group fears the consent
may not impose a
strong enough legal obligation to build the recovery unit
in a timely fashion. "We did not want any backsliding" of the
kind that has been reported in connection with the unrelated
consent degree the agency has with Motiva, he said.
Sunoco
has said it is going to build such a unit and apparently has
begun applying for the necessary approvals from federal,
Delaware and Pennsylvania government agencies to do so. Several
public officials, including U.S. Senator Joseph Biden, have
promised to do all they can to expedite the process, which
normally takes about a year to complete. Sunoco has said the
recovery unit will take about two years to build after all the
required approvals are granted.
"We think
it can be done in about half the time they say it will take,"
attorney Lyman Welch, who filed the suit, told Delaforum.
Moreover,
he added, "there are temporary measures they can take before the
permanent system is installed" that would significantly reduce
the need for flaring. Those measures would involve modifications
to the production processes the refinery uses to convert crude
oil into gasoline and other petroleum products, he said.
Davis
told Delaforum that the refinery "has implemented certain
operational improvements to reduce flaring."
The company previously has said that
equipment failures at the adjacent General Chemical plant
prevented that company from accepting sulfur-bearing gases and
that the only alternative was to burn them off at the flare.
That produces hydrogen dioxide, which both the federal and state
environmental regulators describe as a highly toxic substance,
although not extremely hazardous in the quantities which have
been released at the refinery.
General
Chemical acquires hydrogen sulfide and acid gases, byproducts of
refining, for use in making sulfuric acid in its plant. That
product is then sold back to Sunoco and other Delaware River
Valley refiners. The Clean Air Council suit does not name nor
refer to General Chemical which, along with its parent company,
Gen Tek, recently filed bankruptcy with the
intention to reorganize.
Asked to explain how, in view of the
relationship with General Chemical, improvements on
refinery side of the fence would reduce flaring, Davis said
that, contrary to a general impression among civic activists in
Claymont and other outsiders, not all the flaring
incidents have been the result of inability to deliver the
gasses. "Some were not General Chemical's fault," he said.
He added, however, that he
could not be specific as to the nature or number of those. He
also did not confirm as accurate the total number of incidents
alleged by the Clean Air Council.
The suit
claims there has been a cumulative effect from the releases. "Sunoco's excess
emissions of sulfur dioxide into the air during flaring events
contribute to elevated levels of sulfur dioxide in the area
surrounding Sunoco's facility," it said.
Welch
said there were no grounds for the Clean Air Council to include
General Chemical in its suit, but said that Sunoco might have a
claim against that company depending upon the terms of the
contract under which the gas is transferred. "The flaring
clearly is Sunoco's responsibility," he said.
The
refinery straddles the Delaware-Pennsylvania border. It has
capacity to process 175,000 barrels of crude oil a day and
employs about 700 workers. The flare is atop a 200-foot stack on
the Delaware side of the line. The company itself is
incorporated in Pennsylvania and based in Philadelphia.
Members
of the Clean Air Council "work, reside, recreate, own property [and]
breathe the air ... in the vicinity of and-or downwind of
Sunoco's facility," the suit said.
It goes
on to say that they and other Delaware residents have suffered
from noxious odors, and respiratory and eye irritation.
"Individual members of [the] Clean Air Council have been injured
and continue to be injured by the ongoing sulfur dioxide
pollution caused by Sunoco's flaring," it said.
The
council is a nonprofit organization which describes itself as
the oldest member-supported environmental organization in the
region. It was founded in 1967 and has an office in Wilmington.
Welch is
a full-time lawyer with the Mid-Atlantic Environmental Law
Center, which is based at Widener University School of Law in
Brandywine Hundred. The center, he said, provides free legal
services to environmental organizations, supporting itself by
donations from individuals and foundations and court-assessed
legal fees.
The suit,
filed as a citizen's action under the federal Clean Air Act,
specifies by date 55 Sunoco flaring incidents between Dec. 28,
2001, and May 17, 2002. It lists 12 by date and amount of
emissions between May 17 and Oct. 10.
Under the
federal law, permit violators can be assessed a civil fine of up
to $27,500 per violation. Each day on which an incident occurs
is considered a separate violation.
While the
suit does not specify a total amount of the fine sought, it does
ask that the maximum penalty be imposed. If the court did so for
each violation during the stated periods, it would total
more than $1.8 million. Welch pointed out that the money would
go to the federal government, not the Clean Air Council.
The suit also asks
that Sunoco be enjoined from future violations. Welch said that
means additional fines could and likely would be imposed if and
when more flaring occurs.
The
permit allows flaring, which is a safety measure and reduces the
amount of pollution that otherwise would occur, in emergencies,
during refinery start-ups and shutdowns, and in the event of
process malfunctions. Welsh said General Chemical's inability to
accept acid gases does not constitute an emergency and 'process
malfunctions' refers to refinery equipment.
In the
second of two counts alleged in the suit it is claimed that
"since at least December, 2001, Sunoco has failed to maintain
and operate its facility and flare in a manner consistent with
good air pollution control practices for minimizing emissions by
installing a sulfur-recovery unit."
Under
that count, the suit asks that Sunoco be enjoined from
continuing to operate the facility "in such a manner as will
result in future violations of its permit."
"With the
severe risk to the surrounding community from these release, we
deserve that much," Kearney said. |
