DEC commissioner sides with Flint Hills refinery over his own division

Zaz Hollander
A fuel transport leaves the Flint Hills Resources North Pole Refinery on Monday, May, 12, 2008. SAM HARREL

The commissioner of the Alaska Department of Environmental Conservation has initially sided with the owners of the Flint Hills Resources Fairbanks refinery in a battle over cleanup levels of sulfolane, an industrial solvent used in gasoline production that's migrated from the North Pole facility into groundwater.

Flint Hills argued in a Dec. 20 request for a hearing that staff within the DEC's Division of Spill Prevention and Response failed to justify their decision in November when they set a relatively tough standard: requiring cleanup at levels of 14 parts per billion or higher of sulfolane.

The company, owned by Koch Industries Inc., the Kansas-based multinational corporation, claims the mandatory cleanup level should be 25 times higher, or 362 parts per billion.

Flint Hills argued the state wasn't required to rely on standards set by the federal Environmental Protection Agency, as it did. The company said the state didn't give enough weight to studies referenced by a company consultant.

Flint Hills also said the state ignored a "conservative alternative cleanup level supported by good science" and alleged that the company's alternative was "summarily rejected" by the division "without analysis, reasoning or explanation," according to Hartig's decision.

Commissioner Larry Hartig issued his decision on the company's request on Friday. The commissioner agreed with Flint Hills.

Rather than set a hearing, Hartig threw out the state's earlier determination on the cleanup threshhold and sent the whole thing back to the division with instructions: come up with a new level; factor in studies presented by Flint Hills; and provide a clear explanation as to why they did or didn't use the Flint Hills studies and how they arrived at the final number.

"In reaching this decision, I am not taking any position regarding what the final cleanup level should be for sulfolane," Hartig wrote at the end of the nine-page decision.

The level will dictate not only the extent of future cleanup of the contaminant but how much Flint Hills will have to pay to make sure North Pole residents with wells in the contaminated area have safe drinking water.

Flint Hills announced in early February it planned to end refinery operations by June, partly over costly contamination cleanup issues that company officials say they inherited from the plant's former owner. Flint Hills officials have estimated they pay $2 million a year to supply more than 300 homes in North Pole with bottled water, tanks of water or filters, state officials say.

The head of the spill division on Monday defended the cleanup level but said Hartig was right to say it needed more documentation.

"We thought we made the right decision and we stand by that but we hadn't explained ourselves very well," said Kristin Ryan, spill and prevention division director.

"Nobody feels demoralized," she added, responding to a question about the staff's reaction to the decision.

The new number could end up being the same as the contested one, Ryan said.

Historic contamination has left a plume of sulfolane 3 miles long and 2½ miles wide in the groundwater near the refinery, according to the DEC. The agency says because of the plume, 312 homes are getting alternative water sources or filtered water, paid for by Flint Hills.

Under Flint Hills' proposed cleanup threshhold of 362 parts per billion, the company would have to pay for drinking water for three households, according to Ryan. The range of sulfolane in North Pole wells ranges from amounts too small to detect to more than 500 parts per billion.

A Flint Hills representative didn't return a call from the Daily News for comment.

The facts presented in Hartig's decision are technical but fairly straightforward:

A Flint Hills contractor in May submitted to the spill division a draft study on the risks to humans from sulfolane. It discussed the federal EPA cleanup values and proposed alternative levels ranging from 14 parts per billion to 362 parts per billion. DEC's website says, at least in terms of volume, one part per billion equates to a single drop in an Olympic-sized swimming pool.

The division in July told the company to rely only on the EPA values for sulfolane toxicity. Using those and state-accepted exposure parameters "for a child chronically exposed to sulfolane in groundwater," the result was 14 parts per billion, the division wrote in a July 19 letter.

Flint Hills disagreed and argued for 362 parts per billion, based on its consultant's work.

On Nov. 27, DEC's spill division sent Flint Hills a letter informing the company of the 14 parts per billion cleanup level as "protective of human health, safety and welfare, and of the environment . . ."

There haven't been many studies done that would help companies and officials assess the risk the chemical will sicken people, Ryan said Monday. It's thought the chemical could harm humans' immune systems, but that's not been established by research.

Research she referenced is based on studies of rats and on immediate exposure rather than health effects over time. There are no studies on the long-term effects of sulfolane consumption on humans, and certainly none breaking down different effects on children or men and women with different metabolic rates, she said.

Because of "there's so much uncertainty," DEC chose the more conservative cleanup level, she said.

In the November letter, division staff said they dismissed an analysis by a Flint Hills consultant because it took an approach not authorized by state regulations or risk assessment documents.

Ryan also said Monday that at the time, a study the consultant referenced had not been peer reviewed but was subsequently. The division will now take another look at that science, she said.

Hartig did not give the spill division a deadline for coming up with a new cleanup level and supporting documentation.

Ryan said she expected the division would come up with something within two months.

Reach Zaz Hollander at or 257-4317.