IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA UNITED STATES OF AMERICA, Plaintiff, v. Civ. No. ______________ BAYER CROPSCIENCE LP, Defendant. CONSENT DECREE TABLE OF CONTENTS I. JURISDICTION AND VENUE ..............................................................................1 II. APPLICABILITY ....................................................................................................2 III. DEFINITIONS .........................................................................................................3 IV. CIVIL PENALTY ....................................................................................................6 V. COMPLIANCE REQUIREMENTS ........................................................................7 VI. REVIEW OF DELIVERABLES ...........................................................................12 VII. SUPPLEMENTAL ENVIRONMENTAL PROJECTS .........................................14 VIII. REPORTING REQUIREMENTS .........................................................................19 IX. STIPULATED PENALTIES .................................................................................21 X. FORCE MAJEURE ...............................................................................................24 XI. DISPUTE RESOLUTION .....................................................................................26 XII. INFORMATION COLLECTION AND RETENTION ........................................28 XIII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS ..............................30 XIV. COSTS ...................................................................................................................32 XV. NOTICES ...............................................................................................................32 XVI. EFFECTIVE DATE ...............................................................................................34 XVII. RETENTION OF JURISDICTION .......................................................................34 XVIII. MODIFICATION ..................................................................................................34 XIX. TERMINATION ....................................................................................................35 XX. PUBLIC PARTICIPATION ..................................................................................35 XXI. SIGNATORIES/SERVICE....................................................................................36 XXII. INTEGRATION ....................................................................................................36 XXIII. FINAL JUDGMENT .............................................................................................37 XXIV. APPENDICES .......................................................................................................37 i Plaintiff United States of America, on behalf of the United States Environmental Protection Agency (“EPA”), has filed a complaint in this action concurrently with this Consent Decree, alleging that Defendant violated section 112(r) of the Clean Air Act, 42 U.S.C. § 7412(r), in connection with a runaway chemical reaction at its pesticide manufacturing facility located in Institute, West Virginia on August 28, 2008 that led to an explosion that killed two people. The Complaint alleges that Defendant failed to comply with section 112(r)(7) of the Clean Air Act, 42 U.S.C. § 7412(r)(7), and with its regulations, the Chemical Accident Prevention Provisions at 40 C.F.R. part 68. The Complaint further alleges that Defendant failed to fulfill its general duty of care under section 112(r)(1) of the Clean Air Act, 42 U.S.C. § 7412(r)(1). Defendant does not admit any liability to the United States arising out of the transactions or occurrences alleged in the Complaint. The Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation between the Parties and that this Consent Decree is fair, reasonable, and in the public interest. NOW, THEREFORE, before the taking of any testimony, without the adjudication or admission of any issue of fact or law except as provided in Section I, and with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows: I. JURISDICTION AND VENUE 1. This Court has jurisdiction over the subject matter of this action, pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and section 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b), and over the Parties. Venue is proper in this judicial district pursuant to section 113(b) of the 1 Clean Air Act, 42 U.S.C. § 7413(b), and 28 U.S.C. §§ 1391(b), 1391(c) and 1395(a), because Defendant is located, and a substantial part of the events or omissions giving rise to the claim occurred, in this judicial district. For purposes of this Decree, or any action to enforce this Decree, Defendant consents to the Court’s jurisdiction over this Decree and any such action and over Defendant and consents to venue in this judicial district. 2. For purposes of this Consent Decree, Defendant agrees that the Complaint states claims upon which relief may be granted pursuant to section 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b). II. APPLICABILITY 3. The obligations of this Consent Decree apply to and are binding upon the United States, and upon Defendant and any successors, assigns, or other entities or persons otherwise bound by law. 4. As of the date that BCS neither owns or operates a CAA 112(r) Process at a BCS Facility or an Enhanced FSA Facility, BCS need not comply with performance obligations under Paragraphs 11–14 with respect to that CAA 112(r) Process. No transfer of ownership or operation of any BCS Process at Institute, any BCS Facility, or any Enhanced FSA Facility, whether in compliance with the procedures of this Paragraph or otherwise, will relieve Defendant of its obligation to ensure that all other terms of the Decree, including all Supplemental Environmental Projects, are implemented. At least 30 days prior to the transfer of any BCS Process at Institute, any BCS Facility, or any Enhanced FSA Facility, Defendant shall provide written notice of the prospective transfer and a copy of the proposed written transfer agreement to the United States in accordance with Section XV of this Consent Decree (Notices). At least 30 2 days prior to the transfer of any BCS Process at Institute, Defendant shall also provide a copy of this Consent Decree to the proposed transferee. 5. Defendant shall provide a copy of this Consent Decree to: (i) all officers, employees, and agents whose duties might reasonably include compliance with any provision of this Decree; and (ii) any contractor retained to perform work required under this Consent Decree. 6. In any action to enforce this Consent Decree, Defendant shall not raise as a defense the failure by any of its officers, directors, employees, agents, or contractors to take any actions necessary to comply with the provisions of this Consent Decree. III. DEFINITIONS 7. Terms used in this Consent Decree that are defined in the Act or in regulations promulgated pursuant to the Act have the meanings assigned to them in the Act or such regulations, unless otherwise provided in this Decree. Whenever the terms set forth below are used in this Consent Decree, the following definitions apply: a. “All” or “any” means “any and all”; b. “BCS” means Bayer CropScience LP; c. “BCS Facility” means each facility listed in Appendix A and any facilities located in the United States built or purchased by BCS after the Effective Date of this Consent Decree until the Decree is terminated pursuant to Section XIX (Termination), and subject to the jurisdiction of the Process Safety Management of Highly Hazardous Chemicals Standard (“PSM Standard”), 29 C.F.R. § 1910.119, or the Chemical Accident Prevention Provisions, 40 C.F.R. part 68; d. “BCS Processes at Institute” means the Larvin unit and the No. 2 Powerhouse, insofar as these processes are owned or operated by BCS, as well as any process 3 unit that BCS acquires or starts up at the Institute Plant after signature of this Consent Decree by BCS; e. “CAA 112(r) Process” means any process that is regulated under Section 112(r) of the Clean Air Act, 42 U.S.C. § 7412(r); f. “Complaint” means the complaint filed by the United States in this action; g. “Consent Decree” or “Decree” means this Decree and all appendices attached hereto (listed in Section XXIV); h. “Day” means a calendar day unless expressly stated to be a business day. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next business day; i. “Defendant” means Bayer CropScience LP; j. “Deliverable” means a plan, report, or other item that Defendant submits to the EPA pursuant to this Decree; k. “Digital Control System” or “DCS” means any electronic control system that records or controls data; l. “Enhanced FSA Facilities” means each of the following facilities: i. The BCS Processes at Institute; ii. BCS’s facility at 8400 Hawthorne Road, Kansas City, Missouri; iii. BCS’s facility at 1740 Whitehall Road, Muskegon, Michigan; iv. BCS’s facility in 1500 East Delano Avenue, Littlefield, Texas; v. BCS’s facility in 103 Erskine Street, Lubbock, Texas; and 4 vi. All facilities built or purchased by BCS after the Effective Date of this Consent Decree until the Decree is terminated