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KEYCODE BAYER 390

December 21, 2008, Charleston Gazette

Group upset about EPA deal with Bayer

more information on Bayer´s Institute Plant

CHARLESTON, W.Va. -- Kanawha Valley activists are complaining that federal regulators are going easy on Bayer CropScience in a recent deal proposed to settle wide-ranging environmental violations at the company's Institute chemical plant.
People Concerned About MIC argues that monetary fines in the deal are not adequate, and proposes that Bayer be forced to fund a new community health study and pay for gas masks for all residents.
"While the violations represented in this penalty cover a short amount of time, they do not cover conclusively the years of damage that have been done to the health and environment of our community," People Concerned spokeswoman Maya Nye wrote in a letter sent earlier this month to the U.S. Environmental Protection Agency.
Under the settlement, EPA proposes for Bayer to pay a $112,500 fine, spend $660,000 on new pollution controls and monitoring programs, and buy $240,000 worth of equipment for local emergency response agencies.
The consent agreement would settle allegations made by EPA inspectors during a series of inspections made as Bayer was negotiating to take over the Institute facility from Aventis CropScience in 2001. During inspections in May, August and November 2001, EPA officials found repeated violations of five different environmental laws meant to limit air and water pollution, and protect the public from the dangers of hazardous chemical leaks and spills.
The EPA allegations were not specifically related to the Aug. 28 explosion and fire that killed two workers and forced thousands of residents to take shelter in their homes. Bayer announced the deal - prior to any EPA release of the settlement - in mid-September, as criticism continued of the company's refusal to provide timely information to local emergency responders about that incident.
Among other allegations, however, EPA accused the Institute plant of waiting nearly five hours to report a February 2001 pesticide leak. EPA also alleged that plant officials underreported routine toxic emissions of a total of more than 1,000 pounds of four chemicals in Toxics Release Inventory filings for 1999.
"If the primary purpose of the administrative penalty is to serve as a deterrent for future violations, it is clear that this penalty is not harsh enough as Bayer clearly violated some of the same laws during the recent explosion in August 2008 as they did during the times of the violations represented in this settlement," Nye wrote in her letter to EPA.
EPA officials have said they were investigating Bayer's failure to properly report the Aug. 28 incident.
For at least two hours after the 10:25 p.m. blast, Bayer repeatedly refused to give Kanawha County emergency officials details about what had occurred. Bayer also did not make a required telephone notification to federal environmental officials until more than two hours after the explosion. Federal law requires immediate notification.
As required by law, EPA is accepting public comments on the proposed deal with Bayer. The comment period, originally scheduled to end Monday has been extended to Jan. 16, based on a request from People Concerned About MIC. The citizen group is named for the toxic chemical that killed thousands of people at the Institute plant's sister facility in Bhopal, India, in 1984. The Institute plant still stores large amounts of the chemical, methyl isocyanate.
Under the proposed EPA deal, Bayer would spend $660,000 on a "supplemental environmental project" to stop excess discharges of chloroform from the plant into the Kanawha River. The company will also buy computer software and provide training for Metro 911 officials to model chemical leaks. Bayer will also allow local emergency responders to use a training facility on the company's property for at least one year. In addition, Bayer will donate about $30,000 worth of equipment to fire departments in Institute, Jefferson and St. Albans.
In her letter to EPA, Nye said the money would be better used on an independent monitoring system to review both water and air discharges from the plant, a community health study by independent scientists, and gas masks for all nearby residents.
Nye also said that Bayer should be ordered to fund development of a "comprehensive and independent Emergency Prevention plan" for the area, and argued EPA should come down harder on the Institute plant in the future.
"We would also like to see that violations of permits cause units shut down until plans are developed to ensure the health and safety of the community.
"This concern directly relates to violations that built up over time, pose greater harm to the health, safety and environment of our community than is represented in the violations of this settlement," Nye wrote. "We would like to see the penalties represented in this settlement enforce accountability to our community in which they operate." By Ken Ward Jr.
Read about the settlement: www.epa.gov/reg3wapd/public_notices.htm

December 4, 2008

Administrative penalty to Bayer CropScience

Regional Hearing Clerk (3RC00)
U.S. EPA, Region III
1650 Arch Street
Philadelphia, PA 19103-2029

RE: Docket # CWA-RCRA-CAA-CERCLA-EPCRA-03-2009-0011

Dear Regional Hearing Clerk:

Please consider these comments when assessing the administrative penalty to Bayer CropScience regarding the docket number listed above.

Bayer CropScience and the chemical companies that precede it have consistently discharged fugitive emissions into the air, land and water of our community since the 1940s. While the violations represented in this penalty cover a short amount of this time, they do not cover conclusively the years of damage that have been done to the health and environment of our community.

If the primary purpose of the administrative penalty is to serve as a deterrent for future violations, it is clear that this penalty is not harsh enough as Bayer clearly violated some of the same laws during the recent explosion in August 2008 as they did during the times of the violations represented in this settlement.

Our community has gathered that the problems do not lie in monitoring excessive discharge as would be assumed by some of the proposed SEPs. The problems lie in the neglectful decision-making to stop excessive discharge. Therefore, our community would like to see an independent monitoring system be established for both water and air discharges to be monitored by an independent research team agreed upon by People Concerned About MIC and other concerned parties (West Virginia State University (WVSU) and West Virginia Rehabilitation Center). We also request provisions are made under the SEPs for an epidemiological and health study to be completed by independent scientists and scholars (agreed upon by People Concerned About MIC, WVSU, WV Rehabilitation Center) to determine the adverse effects posed by the violations represented in this settlement.

Since the bulk of the SEPs represent emergency response, we would like to see gas masks provided to each individual within the distance of the worst-case scenario models. This would help each person affected by emergencies personally respond to their immediate breathing needs. We also believe that our emergency responders best understand their needs when it comes to responding to emergencies and therefore would like to see that funds related to emergency response are channeled as deemed necessary by the individual fire departments and other emergency responders. A consistent complaint by members of the Jefferson Fire Department is that their radios do not communicate on the same frequency where emergency response is being dispersed. It therefore would seem necessary that all emergency responders receive radios that communicate with each other and on the same frequency, and not just St. Albans.

While we believe that readiness to respond to emergencies is of dire importance, the proposed SEPs focus heavier on emergency response than what we see to be the real issue: emergency prevention. We do not believe that the $112,500 civil penalty will serve as a strong enough deterrent to prevent future emergencies. Therefore, our community requests that SEP funds be directed towards the development of a comprehensive and independent Emergency Prevention plan. We would also like to see that violations of permits cause unit shut down until plans are developed to ensure the health and safety of the community, and that multiple violations of multiple permits cause entire plant shut down until plans are developed to ensure the health and safety of the community. This concern directly relates to violations that built up over time, pose greater harm to the health, safety and environment of our community than is represented in the violations of this settlement.

The German-owned Bayer CropScience Corporation (formerly Aventis, formerly Rhone-Poulenc, formerly Union Carbide Corporation) serves as an economic stronghold in our valley, utilizing our resources for economic gain. They also serve as a great source of pollution to our community's health and environment. We would like to see the penalties represented in this settlement enforce accountability to our community in which they operate.

Thank you for your consideration. Additionally, please add my name to the registry of interested persons to be maintained regarding this case or group of cases.
Sincerely,

Maya Nye
Spokesperson, People Concerned About M.I.C.
peopleconcernedaboutmic@gmail.com

Bayer CropScience, Institute, WV
NOTICE OF INTENT TO ASSESS ADMINISTRATIVE PENALTY AND OPPORTUNITY FOR PUBLIC COMMENT

U.S. ENVIRONMENTAL PROTECTION AGENCY--REGION III
Office of Enforcement, Compliance, and Environmental Justice (3EC00)
1650 Arch Street
Philadelphia, Pennsylvania 19103
Date of Notice: NPDES Permit No.: DOCKET NUMBER:
November 10, 2008 WV 0000086 CWA-RCRA-CAA-CERCLA-EPCRA-03-2009-0011

In accordance with Section 309(g) of the Clean Water Act (CWA), 33 U.S.C. § 1319(g), notice is hereby given that the U.S. Environmental Protection Agency (EPA), Region III, is proposing an administrative civil penalty against the Respondent named below.

RESPONDENT:
Bayer CropScience
Route 25
Institute, WV 25064

SUMMARY OF VIOLATIONS:
Respondent violated the terms of its National Pollutant Discharge Elimination System (NPDES) permit by exceeding its permit limit for various parameters on a number of occasions. These exceedances constitute a violation Sections 301(a) and 402 of the CWA, 33 U.S.C. §§ 1311(a) and 1342. Also, Respondent failed to report measured flow from certain outfalls for a particular period of time and failed to update its Best Management Practices plan as required by its NPDES permit, in violation of Sections 301(a) and 402 of the CWA, 33 U.S.C. §§ 1311(a) and 1342. These violations were discovered as part of a multimedia inspection of the Bayer CropScience facility in Institute, West Virginia, by EPA. In addition to the CWA violations discussed above, the proposed penalty assessment will include penalties pursuant to the Resource Conservation and Recovery Act (RCRA), the Clean Air Act (CAA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and the Emergency Planning and Community Right-to-Know Act (EPCRA).

PROPOSED ADMINISTRATIVE PENALTY:
Based on the foregoing and having taken into account the nature, circumstances, extent and gravity of the violation(s), Respondent's ability to pay, prior history of compliance, degree of culpability, economic benefit or savings resulting from the violations, and such other matters as justice may require pursuant to the authority of Section 309(g) of the CWA, 33 U.S.C. § 1319(g), EPA Region III proposes to assess an administrative civil penalty against Bayer CropScience. Moreover, EPA proposes to assess an administrative civil penalty against Bayer CropScience pursuant to RCRA, CAA, CERCLA and EPCRA and the statutory penalty factors contained therein. The total proposed penalty to be assessed is $112,500.00 and is consistent with 40 C.F.R. Part 19. In addition to the evaluation of the statutory penalty factors under the various statutes, Bayer CropScience's agreement to perform six Supplemental Environmental Projects (SEPs) was considered in reaching this civil penalty amount.

OPPORTUNITY FOR COMMENT:
Persons wishing to comment on the amount or basis of the proposed assessment are invited to submit a statement to the EPA Regional Administrator, addressed to the attention of the Regional Hearing Clerk (address below), within forty (40) days of the date of this public notice. Comments received within this forty (40) day period will be considered in the formulation of the final penalty assessment order. All comments must include the name, address, and telephone number of the writer and concise statement of the basis for any comment and any relevant facts on which it is based.
Comments are being accepted until December 22, 2008.
All comments should be addressed to:
Regional Hearing Clerk (3RC00)
U.S. EPA, Region III
1650 Arch Street
Philadelphia, PA 19103-2029

AVAILABILITY OF INFORMATION:
Information relevant to the proposed penalty assessment may be requested through the Regional Hearing Clerk.

REGISTER OF INTERESTED PERSON:
Any person interested in a particular case or group of cases may leave his/her name, address, and telephone number on a registry of interested persons which will be maintained in each file. The list of names will be maintained as a means for persons with an interest in the case to contact others with the same interest.
FOR FURTHER INFORMATION. Interested parties may contact the following EPA representative to learn more about this action:
Terri White (3PA00)
U.S. Environmental Protection Agency
1650 Arch Street
Philadelphia, PA 19103-2029
215-814-5523
white.terri-a@epa.gov