October 22, 2002

Sunoco said it is in "full compliance" with a Department of Natural Resources & Environmental Control consent decree which address air pollution problems at its Marcus Hook refinery and is taking interim steps to reduce their frequency while a more permanent remedy is being prepared. Corporate spokesman Gerald Davis said that renders a federal civil suit filed by the Clean Air Council superfluous.

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.


Get more information about this topic

Read related story: Permit sought
Read previous story:
Environmental group sues Sunoco, asks for a big-time federal fine
Read previous story: Reported timetable optimistic

What is your opinion about the topic of this article?
Click here to express your views.

Return to Delaforum home page