Merck & Co., Inc.

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