While claims against bankrupt Limetree Bay Refining over a flare incident that rained oil over St. Croix homes in 2021 have been tied up for two years in federal court, one man is about to have his day in court under the territory’s law that allows those 70 and older to have their cases expedited.
Superior Court Senior Sitting Judge Jomo Meade has set a July 31 trial date in the case of Vincent Liger v. Limetree Bay Ventures LLC and Limetree Bay Terminals LLC, citing the Virgin Islands law — Title 5 V.I.C. § 31(b) — that was enacted in 2021 to grant trial preference to older civil litigants.
In doing so, Meade rejected the defendants’ claim that the statute violates the separation of powers doctrine and the Equal Protection Clause.
“Although this provision is a recent development in Virgin Islands law, many jurisdictions implement statutes and rules which identify special circumstances warranting calendar preference,” Meade wrote in his order dated June 7. “By enacting section 31(b), the Virgin Islands Legislature has deemed it fit to grant that preference to litigants who have attained a certain age or who are experiencing certain critical health conditions,” he said.
While the Limetree defendants argued that the statute imposes limitations on the court’s discretion to set a schedule that accommodates the parties, thus violating the separation of powers between the court and the Legislature, Meade disagreed.
“The statute provides for an expedited trial schedule to permit litigants over the age of 70 to pursue their claims but does not impose any limitation or restriction on the Court’s independent authority,” Meade wrote in his four-page order.
As for the Equal Protection Clause, “the Virgin Islands Supreme Court has instructed that when economic interests are affected, equal protection is satisfied if the statutory classification is rational. However, a statutory classification that affects a fundamental right must show a compelling state interest,” Meade wrote.
“The Virgin Islands Legislature recognizes that advancing age brings increasing physical difficulties and health challenges which may adversely affect the ability of older persons to pursue and protect their interest in litigation that may be protracted over an extended period of time. Accordingly, the implementation of Title 5 V.I.C. § 31(b) to protect the interests of the older persons in their litigation satisfies the rational basis test,” said Meade.
According to Liger’s amended complaint, filed Sept. 26, oil droplets coated the roof and cistern of his Estate Whim home when the refinery experienced a “flare rainout” on May 12, 2021. The incident “was likely caused by overloading the flare knockout drum with liquid droplets that reportedly originated from a process upset at the coker unit,” it stated.
The rainout was the second in months, with another reported on Feb. 8, 2021 that impacted the Clifton Hill neighborhood, the complaint noted.
Rainouts can create both environmental and physical safety hazards, including the contamination of soil and water bodies and “flaming rain,” where the oil droplets ignite as they pass through the flare flame and rain down while on fire in the refinery and nearby neighborhoods, creating sources of ignition within the refinery and beyond, according to the complaint.
The hazards to humans from the mixture of petroleum hydrocarbons include skin and eye irritation in the short term, liver damage with longer exposure, skin hypersensitivity reactions, and even cancer, the complaint stated. Flare incidents also create anxiety in the community about the next possible event, it said.
When the flare rainout occurred, Limetree advised residents not to consume water from their cisterns and established daily water distribution for the affected communities. According to the complaint, refinery representatives visited Liger’s property and acknowledged the presence of oil that they determined was from the “upset” of May 12, 2021.
The complaint claims that Liger was not compensated for the interference with his property that could have been prevented had Limetree had better controls in place as it attempted to restart the refinery that had been shuttered since 2012, when it was closed by then owner Hovensa.
Limetree Bay Refining was subsequently shut down by the EPA after the May flare rainout and filed for Chapter 11 bankruptcy protection two months later. It was sold to Port Hamilton Refining and Transportation at auction in December 2021.
However, according to the complaint, “the financial burden of compensating Mr. Liger for the harms caused by the refinery’s emission of oil would not have rendered it unfeasible for Defendants to continue operating its business, despite the bankruptcy of Limetree Refining and Limetree Ventures.”
Liger, represented by C. Jacob Gower of Gower Legal LLC, is seeking damages for the value of his loss of enjoyment of his property, including the inability to use his cistern water as a potable water source. He also is seeking punitive damages “because Defendants’ behavior in creating the nuisance was the product of utter recklessness and gross negligence, attends moral culpability, and reflects a criminal indifference to the civil obligations that attend refinery operations,” according to the complaint.
Limetree is also facing four federal class actions before Judge Wilma Lewis in V.I. District Court by residents impacted by the flare rainouts in 2021.