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The judge of the Court of First Instance Bonaire, St. Eustatius, Saba ruled in favor of the Executive Council of St. Eustatius and the Statia Safe & Sound Foundation (SSS) in the injunction case filed by oil storage company NuStar against parts of the new permit for their terminal, by upholding the requirement in the new permit to carry out a ‘baseline survey’ of the ground on which their current terminal is built. This ‘baseline survey’ establishes the current chemical composition of the soil. This is required to be able to determine if any contamination of the soil has occurred – and if so how much – in the event NuStar leaves the island. The permit obliges NuStar to clean up any contamination that is the result of their activities so in order to measure this, the ‘baseline situation’ needs to be known. NuStar objects to this baseline requirement.
The injunction was filed by NuStar against the Executive Council as issuer of the permit. Statia Safe & Sound Foundation were part of the case as an interested party because of their appeal against certain elements of the same permit in a different court case.
NuStar operating without permit
NuStar has been operating their oil terminal on St. Eustatius without a permit since 4 February 2002 when their permit expired. An extension of the then existing one or a new permit were never requested. When this came to light, the Dutch Ministry of Infrastructure & Environment was asked by the Island Government to put together a new permit. The new permit includes a recent expansion of the plant with new tanks (the 70 series). In the meantime, NuStar applied for a temporary waiver. Since the previous permit was issued on 4 February 1997 and since then no permits were extended, updated or renewed and technology and environmental demands have progressed since then, the new permit contains a host of new or stricter requirements for NuStar in order to meet the environmental and safety demands of today.
Because of this high number of conditions that NuStar’s current plant does not meet, the permit grants NuStar time to comply. Statia Safe & Sound filed an appeal against parts of the permit because it finds certain terms far too long and the removal of certain obligations unjustified. NuStar has filed an appeal against elements of the same permit because it finds certain terms too short and the inclusion of certain obligations unjustified. The injunction case discussed here is in conjunction with this appeal of NuStar.
Terms granted to NuStar to comply with regulations in the new permit go up to 7 • years, 15 years and even 20 years. Also, the obligation to install vapor extraction units to prevent harmful substances being emitted into the air has been dropped.
Lower level of protection for St. Eustatius
SSS is of the opinion that NuStar’s complaint that there are now too many new or stricter regulations to meet is the result of their own doing since they have been operating outside of government control for over ten years and thereby avoided the requirement to invest in meeting updated safety and environmental conditions. In fact, SSS argues, this means that during those years the company was able to make more than regular profits on the island which in turn should mean they now have more than regular funds at their disposal to update their facility. Granting NuStar the extended terms of the permit comes down to rewarding the company for operating without a permit for over ten years, SSS concludes. It also means that an unwanted situation that has existed for twelve years now is allowed to continue even much longer. “There have already been three known oil spills within seven months’ time from June 2013. How many more need to happen before the government wakes up? And this includes the Dutch Ministry who should have learnt from the recent dramatic events at Odfjell in Rotterdam and Chemie-Pack in Moerdijk – both of which occurred because of being lax and too lenient.”
SSS also objects to the use of “the location specific aspects of the island” as an argument to justify longer terms than apply in the other parts of the Dutch Kingdom. SSS: “Basically they are saying that the environment and people’s lives on St. Eustatius do not deserve as much protection as those in the other parts of the Kingdom. The reasoning is not balanced and disproportionately favors NuStar over the island and its people. If the situation on St. Eustatius is so different, then the conclusion should be that NuStar has to invest more in securing the safety of the environment and people instead of the latter having to tolerate a higher degree of unsafety than elsewhere.”
Statia Safe & Sound declared admissible
NuStar tried to declare SSS inadmissible in the case but the judge threw this out since NuStar themselves informed the Court that SSS was a third interested party and the Court agreed.
The judge did grant NuStar suspension of the permit regulations that are subject of its appeal case until a decision in this case is taken. A decision about this appeal and SSS’s appeal are expected in June.
The island was represented by Mr. B.G. Hofman of Bermon Law Office in St. Maarten and NuStar by Mr. T.L.H. Peeters of VanEps Kunneman VanDoorne Lawyers in Bonaire. Representing Statia Safe & Sound Foundation was its chairman, St. Eustatius Monuments Director Walter Hellebrand