Merck & Co., Inc.
Letter from David Carr to Carol Browner and Richard Wilson
December 18, 1996
Ms. Carol Browner
Administrator
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Mr. Richard D. Wilson
Deputy Assistant Administrator
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Re: Merck XL Permit -- Lack of Adequate Community and Public Interest
Representation
Dear Ms. Browner and Mr. Wilson:
Over the past year, I have provided input to the Merck XL project. I
am writing to bring to your attention a substantial flaw in the proposed
Merck XL permit regarding the participation rights of community and
public interest participants. I have been trying to address this concern
by working with the participants over the past month, but I now understand
that EPA Region III and the other project signatories plan to sign the
Final Project Agreement (FPA) without the public representation issue
being resolved. I request that the issue be resolved prior to EPA proceeding
further with this project.
For many months, the draft permit has provided that Rockingham County
can nominate up to three community representatives for a stakeholder
position in the future five-year reviews of the permit. Those community
representatives would have to be approved by the full consent of the
project signatories which include the government representatives and
Merck. These community representative stakeholders would then need to
consent to any changes in the permit, as changes could be made only
by consent of the stakeholders. (Merck PSD Permit 11/15/96).
This five year review is an especially important protection for the
public and agencies because Merck has insisted that the permit have
an indefinite life. While I have always strenuously objected to this
unlimited duration feature, the response from Merck and EPA has been
to provide for five year reviews of the permit with direct stakeholder
involvement. Basically, in exchange for acceding to a permanent permit,
the stakeholders got a five year review process. (Section 6 of the permit.)
On September 9, 1996, I formally recommended that the draft permit be
modified to explicitly provide for a public interest stakeholder that
would be nominated by the signatories and agreed to by full consent
of the signatories including Merck. Merck has unilaterally resisted
that change and contended that the only stakeholders should be those
nominated by Rockingham County. While I fully support having three community
representatives that are nominated by Rockingham County as stakeholders,
I believe it is important to have a public interest representative that
can provide a perspective different from the community, and independent
of local concerns such as jobs and the tax base. This is particularly
so given the adverse impacts of air pollution on Shenandoah National
Park, which is only 2 kilometers from the Merck plant, and the widespread
public concern for the Park's resources.
In response to my continued request to provide for a public interest
stakeholder with a true voice in the permit review process, Merck has
now proposed a revision of the permit that makes a bad situation worse.
Merck is now offering a public interest representative slot, but has
taken away the community representatives' and the newly proposed public
interest representative's rights in the permit review process. Instead
of permit changes requiring the consent of the stakeholders, Merck is
now saying that permit changes need only the consent of all signatories.
Therefore, under the latest draft permit (that now accompanies the FPA)
the community representatives will lose the rights that the current
participants and signatories have been expecting them to have.
This extinguishing of the rights of non-government stakeholders (except
for Merck) is unacceptable for the following simple reason. In the normal
permit review process the government agency, the state or EPA, in consultation
with the federal land manager makes the permit decisions. Merck is now
proposing a process where the applicant would have a veto over any changes
the government agencies seek to make, but the community representatives
and the public interest representative would have no concomitant rights
in the process. Any new solutions to regulatory issues need to be addressed
through a balanced process. Setting up a process where the industry
applicant has a veto over changes, but the public has no similar veto
is clearly unbalanced and unacceptable.
I am sure that Merck and even some government representatives will emphasize
that the current proposal gives the community and the public interest
representative seats at the table in the discussions. However, without
a definite right to participate in the decision and object to changes
that could damage the community or the environment, the opportunity
for participation is meaningless.
We trust that EPA headquarters, in reviewing this project and in trying
to restore balance between the public's interest and industry's interest
in the XL program, will provide for and protect the community's and
public's participation rights. Without assurances of that balance, the
XL program, like this proposed permit, would be seriously flawed.
This issue is fairly straightforward and should be addressed before
this permit goes out for public comment. If not, it will send the wrong
signal to the public regarding the openness of the XL program which
already has many skeptics in the public interest and environmental community.
Frankly, I think it would be a shame to taint what I view as a solid
project, which provides for substantial overall emission reductions,
with this unreasonable and unnecessary restriction on the public's participation
rights.
Sincerely,
David W. Carr, Jr.
Staff Attorney
DWC/cwn
cc: George Frampton, Assistant Secretary for Fish and Wildlife and Parks,
Department of the Interior
Karen Malkin, NPS Air Quality Division
Michael McCabe, EPA Region III Regional Administrator
Robin Moran, EPA Region III
Joe Correa, Rockingham County
Betty Sellers
Bill Sipe