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EPA seeks to shave Bayer payment for fatal 2008 explosion in Institute

Bayer explosion

Two workers were killed in an August 2008 explosion and fire at the Bayer CropScience plant in Institute.

Trump administration environmental regulators are seeking to reduce by nearly $1.4 million the amount Bayer CropScience will pay to resolve serious safety violations cited in the 2008 explosion that killed two workers at the Institute chemical plant, records show.

The U.S. Environmental Protection Agency proposed to allow Bayer to cut the amount it spends on supplemental environmental projects under a legal settlement from $4.42 million to $3.05 million, according to EPA filings in federal court in Charleston.

Under the proposal, Bayer would not complete a more expensive wastewater treatment improvement project but would buy equipment for two local volunteer fire departments in Jefferson and Institute.

The Institute Volunteer Fire Department would get two new pumper trucks, thermal imaging cameras, breathing equipment, radios and hoses. The department in Jefferson, located across the Kanawha River from the plant, would get one new pumper truck, thermal imaging cameras and radios.

The EPA and Bayer said in court filings that the new proposal would “better advance the objectives of chemical accident prevention laws that form the underlying basis of the enforcement action” that led to the settlement.

The EPA and Bayer have been quietly working on the proposal since at least March. A notice about the proposal was published in the Federal Register last month, with a public comment period that runs through Thursday.

The matter is pending before U.S. District Judge John T. Copenhaver Jr., who approved the original consent decree between the EPA and Bayer a little more than a year ago, in August 2016.

The EPA-Bayer deal concerns the Aug. 28, 2008, explosion and fire at the Institute plant, then owned by Bayer and now controlled by Dow, which recently merged with DuPont.

Plant workers Bill Oxley and Barry Withrow were killed, and the fatal explosion and fire brought renewed scrutiny, and eventually elimination, of the plant’s huge on-site stockpile of methyl isocyante, the chemical that killed thousands of people in a 1984 leak at a Union Carbide plant in Bhopal, India.

The U.S. Chemical Safety Board blamed the explosion on “significant lapses” in plant safety practices, and congressional staffers warned during a high-profile hearing that the incident could easily have been a “catastrophe rivaling the Bhopal disaster.”

More than seven years after the explosion, EPA lawyers simultaneously filed a legal complaint against Bayer and a consent decree proposing to settle that same complaint. The EPA alleged “numerous problems” occurred at the plant when Bayer did not comply with its “risk management plan” to prevent chemical releases.

When the EPA announced the deal in September 2015, the agency touted it as “a $5.6 million settlement” that would “enhance safeguards” at Bayer operations in four states.

The settlement included a $975,000 fine and $452,000 to be spent in Institute and at Bayer plants in Michigan, Missouri and Texas on improved company safety inspections aimed at identifying ways to improve safe operating procedures.

By far the largest share of the settlement was the $4.23 million that was to be spent on “supplemental environmental projects,” or SEPs, to protect the Kanawha River from toxic pollution and improve local emergency preparedness and response in the Institute area.

The original proposal for SEPs included $1.1 million for new emergency communications equipment and for training for various local police and fire departments.

The biggest expenditure in the original consent decree was $3.1 million to be spent on what was called the “West Sump Expansion.”

Under the original agreement, Bayer was going to install an 840,000-gallon sump to reduce the risk of untreated chemical wastewater from flowing into the Kanawha River during heavy rain events, firefighting emergencies and chemical process upsets. EPA and Bayer said at the time that, during the previous four years, from 2011 to 2014, about 373,000 gallons of untreated wastewater had overflowed and ultimately discharged into the Kanawha prior to the improved sump.

In a status report filed with Copenhaver in July 2017, Justice Department officials, representing the EPA, said Bayer wanted to drop the idea of spending more than $3 million on the West Sump Expansion.

Justice Department senior counsel Daniel Smith said in the report that Bayer had installed two new electric pumps and other equipment that appeared to be effectively controlling any chemical wastewater overflows.

Smith also said that during the initial construction of the project, Bayer had “encountered soil contamination during the initial stage of construction ... that endangered the health and safety of the construction workers and generally posed difficulties for completion” of the project.

Earlier this year, West Virginia State University sued Bayer, Dow and other companies, alleging chemicals from the plant had contaminated the groundwater and soil beneath the university campus, located adjacent to the Institute plant.

Bayer informed the government of these issues in March 2017. The two parties met in May and “agreed that it did not make sense to proceed with the West Sump Expansion project” and that they would come up with “appropriate alternative” projects.

That status report also outlined the proposal to replace the West Sump Expansion with new equipment purchases for the local fire departments. It said those purchases would total $1.7 million, compared to the $3.1 million Bayer committed to spend in the West Sump Expansion.

Smith said in the report that the EPA believed the equipment purchases “are better projects with a closer nexus to the alleged violations” and would provide “potentially greater benefit to the community.”

The DOJ Federal Register notice informing the public of its proposal to change the consent decree said the changes would decrease the total Bayer would spend on its environmental projects from $4.23 million to $3.05 million. But in March, the government submitted an earlier change, saying the $4.23 million had already been increased to $4.42 million. So the decrease in Bayer spending is greater than what the Federal Register notice, published Sept. 22, indicated.

Comments on the proposed changes to the Bayer consent decree are being accepted through Thursday and can be emailed to pubcomment-ees.enrd@usdoj.gov, or mailed to Assistant Attorney General, U.S. DOJ-ENRD, P.O. Box 7611, Washington, D.C. 20004-7611.

Reach Ken Ward Jr. at

kward@wvgazettemail.com,

304-348-1702, or follow

@kenwardjr on Twitter.

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