October 19, 2002

Alleging 67 violations of the environmental permit governing use of the flare at its Marcus Hook refinery since last December, the Clean Air Council asked federal court to fine Sunoco Inc. up to $1,843,500.  It also asked that the company be required to speed up the process of installing equipment to eliminate the need to flare hydrogen sulfide except in limited circumstances.

A civil suit filed on Oct. 18 in U.S. District Court in Wilmington 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 suit 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."

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.

John Kearny, Delaware director of the Clean Air Council, said the group fears a consent agreement between the state agency and Sunoco 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 and state environmental officials did not respond to requests from Delaforum for comment.

The Clean Air Council suit does not name nor refer to General Chemical, which acquires hydrogen sulfide and acid gases, byproducts of refining, for use in making sulfuric acid in its plant adjacent to the refinery. That product is then sold back to Sunoco and other Delaware River Valley refiners. General Chemical and its parent company, Gen Tek, recently filed bankruptcy with the intention to reorganize.

Sunoco has said that General Chemical equipment failures prevented that company from accepting the 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.

The suit alleges 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.


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