INEOS Styrolutions has appeal the Ministry of Environment’s orders which shut the Sarnia plant down calling it “crippling.”

And it wants the Ontario Land Tribunal to put the order on hold – effectively allowing INEOS to begin production again – while the legal arguments are heard.

May 1 – 15 days after high levels of benzene in the air sickened members of the the Aamjiwnaang First Nation – the Ministry of the Environment, Conservation and Parks, pulled the company’s Environmental Compliance Approval certificate shutting the styrene plant down.

The ministry, in a news release at the time, said the benzene emissions from the plant continued “above acceptable levels.This action will ensure the facility, currently shut down for maintenance, fully addresses the causes and sources of emissions.”

The order required the removal of all benzene storage from the site, repairs on leaky equipment and the installation of full vapour control on anything containing benzene. The ministry also wanted a comprehensive benzene monitoring and community notification plan.

Those orders for installation full vapour control equipment were later mirrored by the federal government which announced an interim order May 17 requiring all benzene storage tanks to have full vapour control.

INEOS Styrolutions President of Operations Pierre Minguet, in a letter to the Minister one week after the provincial order was issued said the new standards the company are required to meet were “arbitrary” and a “dramatic reduction.”

“Our engineers and technical teams have raised significant concerns about the sites operational stability, safety, elevated emissions impacts and the potential for broader economic impacts if the ministry insists on the ill-informed actions and unrealistic timelines contained in its May 1, 2024 ECA Amendment.”

A week later, lawyers for INEOS Styrolutions filed an appeal to the Ontario Land Tribunal which now hears cases regarding MECP orders.

“The imposition of the significantly reduced benzene emission limits as set out in the order is crippling to INEOS’ operation and will undoubtedly cause a rippling effect on the refineries that account for a significant portion of the Sarnia-Lambton area economy,” write Rick Coburn, Gabrielle Kramer and Franz Lopez of the law firm Borden Ladner Gervais LLP for INEOS Styrolutions in the letter asking for an appeal and a provisional stay of the order which shutdown the plant.

“Benzene is a byproduct of the fuel refining process, a major economic activity in the Sarnia-Lambton area. The Sarnia-Lambton industrial cluster is a large producer of benzene. All of the benzene produced by the major refineries as a byproduct of their operations – which supply a large portion of the automotive fuel used in Ontario and jet fuel – is then transferred to INEOS for styrene production.”

The lawyers say Styrolutions has been actively working with the ministry to reduce benzene emissions and “INEOS took advantage of this shutdown to identify and correct potential sources of benzene emissions throughout its system.”

The company’s lawyers take issue with some parts of the ministry order including the mandatory and immediate public notification requirements “based on an arbitrary percentage” set out by the minister which “the Director concedes does not have the force of law and requires contextual interpretation. INEOS proposes that notification be provided instead to the MECP with a proposal for public notification if warranted by the circumstances.”

And the lawyers say “a robust rationale” for the new benzene emission benchmarks has not been provided nor has there been consultation on them. “Application of the Benchmarks has not been demonstrated to be necessary or appropriate to prevent an adverse effect or be protective of the environment.”

The company, through its lawyers, also disagrees with the ministry’s order to “cease accepting
and storing benzene at the Site by May 15…emptying the tanks is not achievable in a safe manner due to the extent of activities required and absence of off-site storage tanks,” the lawyers write in the request for an appeal.

Styrolutions submitted an alternative start up plan May 8 which lawyers say “is a more viable, safer, and environmentally sounder alternative to the requirements.” The company says that plan, along with air monitoring plan “form an alternative and effective plan for re-starting the facility and continued storage of benzene in an environmentally sound and safe manner, while minimizing off-site impacts to local community including the neighbouring Aamjiwnaang First Nation, as well as impacts to our industrial partners within the cluster.”

The lawyers also ask for a stay of the suspension of its Environmental Compliance Approval certificate – which is keeping the company from producing styrene – while the legal arguments are being heard.

If the ministry doesn’t approve the company’s plan, the lawyers contend INEOS “will suffer irreparable harm … as it is unlikely that INEOS will recover the costs of complying with the Order” which they estimate at $35 million.

“Of equal importance, however, there may be harm to, or reduction in protection of the environment through ill conceived mandates on timing, unnecessary directives to perform certain actions that will actually increase benzene emissions and duplicate and/or unnecessary deployment of resources otherwise available to complete voluntary initiatives,” the lawyers write.

“The public interest is best served by ensuring that the benzene emissions previously
applicable to INEOS program continue to apply to INEOS.”

The letter to the OLT also suggests without negotiation between the ministry and the company the 80 jobs at the plant, the spin off jobs it creates and the $15 million it pumps into the local economy as well as a proposed $200 million US planned environmental upgrade of the facility are in jeopardy.

Under the Environmental Protection Act, the tribunal can “confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the Tribunal considers the Director should take” under the EPA.

Details of when a hearing might be held and whether the company continues to work on the issues the led to the elevated levels of benzene in the air, were not immediately available.