Boynes v. Limetree Bay Ventures, LLC
| Decision Date | 28 April 2023 |
| Docket Number | Civil Action 2021-0253,2021-0259,2021-0260,2021-0261 |
| Parties | CLIFFORD BOYNES, et al., Plaintiffs, v. LIMETREE BAY VENTURES, LLC, et al., Defendants. HELEN SHIRLEY, et al., Plaintiffs, v. LIMETREE BAY VENTURES, LLC, et al., Defendants. FRANCIS E. CHARLES and THERESA J. CHARLES, Plaintiffs, v. LIMETREE BAY VENTURES, LLC, et al., Defendants. BEECHER COTTON, et al., Plaintiffs, v. LIMETREE BAY VENTURES, LLC, et al., Defendants. |
| Court | U.S. District Court — Virgin Islands |
John K. Dema, Esq., Lee J. Rohn, Esq., St. Croix, U.S.V.I Jennifer Jones, Esq., St. Thomas, U.S.V.I. Hugh P. Lambert Esq., Brian James Mersman, Esq., Kerry J. Miller, Esq., C Hogan Paschal, Esq., Paul C. Thibodeaux, Esq., Rebekka C Veith, Esq., J. Christopher C. Zainey, Jr., Esq., New Orleans, Louisiana For the Boynes Plaintiffs
Vincent A. Colianni, II, Esq., John-Russell Bart Pate, Esq., Lee J. Rohn, Esq., St. Croix, U.S.V.I. Warren T. Burns, Esq., Daniel H. Charest, Esq., Dallas, Texas Charles Jacob Gower, Esq., Hugh. P. Lambert, Esq., Korey A. Nelson, Esq., Harry Richard Yelton, Esq., New Orleans, Louisiana For the Shirley Plaintiffs
John K. Dema, Esq., Lee J. Rohn, Esq., St. Croix, U.S.V.I Hugh. P. Lambert, Esq., Brian James Mersman, Esq., J. Christopher C. Zainey, Jr., Esq., New Orleans, Louisiana For the Charles Plaintiffs
Vincent A. Colianni, II, Esq., Rhea Lawrence, Esq., Marina Leonard, Esq., Lee J. Rohn, Esq., St. Croix, U.S.V.I Shanon Jude Carson, Esq., Daniel H. Charest, Esq., Quinn Burns, Esq., Warren T. Burns, Esq., Dallas, Texas John Quin Kerrigan, I, Esq., Doylestown, Pennsylvania John Albanese, Esq., Minneapolis, Minnesota Dena R. Young, Esq., Philadelphia, Pennsylvania Charles Jacob Gower, Esq., Hugh. P. Lambert, Esq., Harry Richard Yelton, Esq., New Orleans, Louisiana For the Cotton Plaintiffs
Carl A. Beckstedt, III, Esq., Robert J. Kuczynski, Esq., Ryan C. Stutzman, Esq., St. Croix, U.S.V.I. Kevin J. Bruno, Esq., New York, New York Melanie S. Carter, Esq., Philadelphia, Pennsylvania For Defendant Limetree Bay Terminals, LLC
MEMORANDUM OPINION
THIS MATTER comes before the Court on Plaintiffs' “Amended Motion[s] for Temporary Restraining Order and Preliminary Injunction;”[1] Defendant Limetree Bay Terminals' Response;[2] Plaintiffs' Reply;[3] and the parties' Supplemental Briefs.[4] Plaintiffs request that the Court order Defendant to remediate the cisterns and property of, and establish a program to provide free bottled water to, Plaintiffs and other similarly situated residents during the pendency of this litigation. A first phase evidentiary hearing was held over four days from March 2-7, 2023, and the parties filed their Supplemental Briefs on April 3, 2023.
For the reasons that follow, the Court finds that Plaintiffs have met their burden to establish that some, but not all, members of the group on behalf of whom they seek preliminary relief are entitled to such relief. Specifically, the Court finds that Plaintiffs have satisfied the four preliminary injunction factors with respect to those Plaintiffs and putative class members who cannot afford to purchase water without trading off other basic necessities, but that Plaintiffs have satisfied these factors with respect to this population only. The Court also finds that preliminary injunctive relief for a water provision program is warranted, while such relief for the remediation of Plaintiffs' cisterns and property is not.
On the south shore of St. Croix sits an oil refinery. The refinery began production in the 1960s and increasingly expanded its operations over the next fifty years, becoming one of the largest refineries in the United States. Following a series of environmental violations, in 2011 the refinery's then-owner, HOVENSA, agreed to pay millions of dollars in fines and expend hundreds of millions of dollars in new pollution controls.[5] The refinery ceased production shortly thereafter, in the spring of 2012, and HOVENSA declared bankruptcy three years later.[6] Ownership of the refinery then passed to Limetree Bay Terminals, LLC (“Terminals”), one of the defendants in these four associated cases.
Beginning in 2018, Terminals began maintenance and repair work on the refinery with the goal of restarting operations. After three years of this “startup” work-much of which Terminals shared with its “sister company,” Limetree Bay Refining, LCC (“Refining”)-production resumed on February 1, 2021.[7] Three days later, a flare at the refinery-in essence, a large smokestack intended to safely dispose of excess gas-exceeded its operating capacity and released what a refinery representative later characterized as a “mist with heavy oil in it.”[8] Within hours, the refinery began receiving calls from residents of St. Croix's Clifton Hill neighborhood complaining of oil droplets on their vehicles and homes, and refinery representatives later reported to the Environmental Protection Agency (“EPA”) that nearly 200 residences were potentially contaminated by the event. (Hereinafter, the “first release event.”)
The remainder of February and March passed without incident, but on April 19, 2021 the same flare, Flare 8, began emitting hydrogen sulfide-a colorless gas that smells like rotten eggs-over regulatory limits. Flare 8 exceeded these limits over the next week, prompting the Virgin Islands Department of Planning and Natural Resources (“DPNR”) to issue a press release addressing a “foul, gaseous smell permeating throughout the Frederiksted area,” and the Virgin Islands Department of Health (“DOH”) to issue a release warning residents of potential health risks associated with the same.[9] (Hereinafter, the “second release event.”) Similar emissions exceedances occurred the following month, on May 5 and May 7, leading the Governor of the Virgin Islands to mobilize the National Guard and Virgin Islands Territorial Emergency Management Agency (“VITEMA”) after residents sought medical attention for nausea and headaches. (Hereinafter, the “third release event.”)
The refinery's operations continued unabated from the first to third release events, except for a brief period in early April during which the refinery temporarily halted production to make “operational adjustments.”[10] However, in what the EPA later characterized as a “flare rainout” event, on May 12, 2021, Flare 8 began spewing flames dozens of feet high, resulting in a long plume of smoke trailing off to the northwest of the refinery.[11] Refinery representatives later confirmed that this incident deposited droplets of oil on residences at least as far as the Enfield Green neighborhood, and residents to the west of the refinery also reported witnessing a large “black cloud” heading toward Frederiksted, smelling noxious odours, and observing numerous specks of oil on their homes and in their cisterns.[12] (Hereinafter, the “fourth release event.”) Two days later, the EPA issued an emergency order addressed to Terminals and Refining, requiring-among other things-that the refinery cease operations.[13] The refinery has not resumed production since that time.
***
The 44 plaintiffs in these four associated cases-which have been consolidated for purposes of these preliminary injunction proceedings-allege injuries stemming from the release events, principally relating to contamination of their properties and cisterns with petroleum products. Plaintiffs bring over a dozen causes of action against over a dozen defendants, including Terminals, Refining, and their investors.[14] Plaintiffs bring these claims on behalf of both themselves and other yet-to-be-identified St. Croix residents affected by the release events.[15]
Although two years have elapsed since the release events, Plaintiffs' cases remain in their very earliest stages. This is largely due to the fact that a number of companies associated with the refinery declared bankruptcy in the summer of 2021, resulting in a stay of proceedings in this Court.[16] While Plaintiffs and various debtors associated with the refinery attempted to mediate an agreement in the Bankruptcy Court, the debtors agreed to expand a pre-existing program providing free bottled water to residents during the pendency of the mediation.[17] Under the expanded program, the debtors agreed to provide free bottled water to the approximately 20,000 persons residing in the Frederiksted, Southcentral, Northcentral, and Southwest subdistricts of St. Croix, subject to limits on the amount of water individual residents could receive and a monthly cap on total expenses, among other conditions.[18] Both the expanded program and its predecessor program ended in September 2022-days after Plaintiffs terminated the Bankruptcy Court mediation-and this Court subsequently returned the four associated cases to the active trial docket.
Plaintiffs now seek a preliminary injunction ordering Terminals to: (1) “remediate [the] contaminated roofs, pipes, and cisterns” of Plaintiffs and putative class members (hereinafter, “remedial relief); and (2) “supply [] safe, clean, and potable water” to Plaintiffs and putative class members during the pendency of this litigation (hereinafter, “programmatic relief”).[19] By Order dated February 2, 2023, this Court determined that the complexity of Plaintiffs' Motions warranted dividing the evidentiary hearing in this matter into two phases:
a first phase “entitlement” hearing, to determine whether Plaintiffs are entitled to the preliminary injunctive relief they now seek; and-provided that the Court determined that any such relief was warranted following the first phase hearing-a second phase hearing to determine the precise scope and structure of such relief and the...
To continue reading
Request your trial