Hovensa filed for a change of venue this week for the Department of Planning and Natural Resource’s federal lawsuit seeking damages and cleanup at the refinery and other industrial sites on St. Croix’s south shore.
Local and federal enforcement officials have been trying to assess fault and cleanup responsibility for the noxious metallurgical wastes deposited on the site by aluminum smelters, groundwater contamination from Hovensa and other pollution in the industrial area of the island.
In 2005 Gov. Charles Turnbull’s administration filed suit against a slew of companies that owned the property at one time or another, including Hovensa, St. Croix Alumina, Alcoa World Alumina, St. Croix Renaissance Group, Lockheed Martin, Century and Vialco.
Planning and Natural Resources Commissioner Alicia Barnes reached agreements with St. Croix Renaissance Group and St. Croix Alumina in 2011, regarding who would pay for and arrange to cover over a mountain of red bauxite tailings. But several other defendants and plots of land remain in litigation.
Hovensa and DPNR remain at odds over the range, severity and long-term prognosis of groundwater contamination by the refinery.
In the motion filed in U.S. District Court on Monday, Hovensa argues the refinery’s closure made it too unpopular to get a fair trial in the territory.
"The unique circumstances that confront the refinery defendants in this litigation make it impossible to empanel an unbiased jury on St. Croix and, in fact, the entire Virgin Islands," Hovensa attorneys wrote in the motion.
Along with news stories about the economic impact of the closure, from St. Croix unemployment going from 8 to 17 percent, to increases in the cost of fuel to generate electricity, Hovensa cites comments made by Gov. John deJongh Jr. that were critical of the refinery as evidence of a pervasive anti-Hovensa bias.
Most of the cited statements are factual recitations of the impact of the closure, such as deJongh saying in his 2013 state of the territory address that "all will agree that the closure of the refinery has had a devastating impact on the territory." (The emphasis is added the court motion and is not in the speech it is quoting.)
The deJongh statement most explicitly judgmental of Hovensa is from a 2012 televised address, in which deJongh said "(t)hat the government received less than 24 hours notice was a sure indicator of just how little the U.S. Virgin Islands has come to mean to Hess as well as for its partner, PDVSA, despite the fact that the Virgin Islands and its people have been partners with Hess for the better part of half a century."
Hovensa also cites a survey it paid for that found most Virgin Islanders believe the refinery closing will have a negative effect on them personally and many are not happy about it.
"Unsurprisingly more than 40 percent of Virgin Islands respondents are either ‘slightly angry’ or ‘very angry’ with the refinery defendants," reads Hovensa’s motion.
In a statement issued Tuesday evening, deJongh decried Hovensa’s move. “It’s troubling to me that a former judge in the Virgin Islands would submit such a filing for a company, any company, in a civil lawsuit where it is implied that it is not possible to get a fair trial in the Virgin Islands," deJongh said.
"Any attempt to change the venue or to move this case to a court outside of the entire Virgin Islands will be vigorously opposed," he added.
Government House Director of Communications Jean Greaux Jr. added that attorney Henry Feuerzeig, who once sat on the bench of the then-Territorial Court of the Virgin Islands, had filed the motion on behalf of Hovensa.
"We were perplexed by this filing given the advancements that have been made to bring stature to the Virgin Islands judiciary. The recent recognition of the Supreme Court of the Virgin Islands by the United States Government is but one example of the maturity of our local court system,” Greaux said.
“Given the ongoing negotiations with the owners of Hovensa as regards the long term use of the refinery, I believe their focus should be on identifying a company that would return the refinery to its best use – that of refining oil – while at the same time providing employment opportunities to Virgin Islanders,” deJongh added.
On Tuesday, the day after Hovensa filed for a change of venue, U.S. District Judge Harvey Bartle III, issued several rulings denying previous Hovensa motions to exclude expert testimony from two scientists concerning the extent of contamination to the water table.
Among the statements Bartle allowed to remain on the record that Hovensa wanted to exclude is testimony from groundwater hydrologist Charles B. Andrews, saying the aquifer will remain contaminated unless cleanup efforts are expanded dramatically.
"The volume of groundwater in the Kingshill aquifer affected by contamination from the refinery is currently about 3.4 billion gallons, and the volume of contaminated groundwater in the shallow aquifer is about one-half billion gallons; the volume of groundwater contamination will remain relatively unchanged for the indefinite future because of the large amount of residual petroleum in the subsurface even with continued operation of the groundwater recovery systems," Andrews said in a report prepared for DPNR.
Bartle did not mention the change of venue request in his rulings filed Tuesday, which were on motions made months previously.