DEQ-CFW_00074111

D*DavidAhmanColsional associaaon
VIA EMAIL & U.S. MAIL
Director, Division of Water and Waste
Management, West Virginia Department of
Environmental Protection
ATTN: Lori Devereux, Permitting Section
601 57" Street SE
Charleston, WV 25304-2345
[e-mail]
DEP.Comments@w`v.gov
January 3, 2012
Re: Public Notice No.: L-136-11 Consent Order No. 7418
Dear Ms. Devereux:
On behalf of my client, the Little Hocking Water Association, Inc.', I submit these
comments to Order No. 7418 between the West Virginia Department of Environmental
Protection and E. I. du Pont de Nemours & Company2 (Public Notice No. L-136-11). According
to the public notice, Consent Order No. 7418 (the "Proposed Order") would allow DuPont to
commence commercial -scale production of fluoropolymers using a new compound — C3 Dimer
Acid/Salt (CAS #13252-13-6 and CAS # 62037-80-3) (the "New Compound") — and to
discharge the New Compound to the environment 3 While it is tempting to assume that any
"substitute" for PFOA is better than PFOA, such a blind bet is not the best option to protect the
health, safety, and welfare of the public.
Little Hocking is a rural non-profit water supplier whose water supply is believed to have
the highest known PFOA4 (an analog of the New Compound) levels of any public water supply
in the country. In fact, Little Hocking water users who have had their blood tested for PFOA
have some of the highest non -worker PFOA blood levels of any reported in the United States to
date. Other PFOA-related chemicals are also present in Little Hocking's water supply and in the
blood of its water users. It is widely accepted that DuPont's Washington Works Plant is the
ultimate source of the PFOA contamination. Indeed, even DuPont recognizes that the PFOA it
2a1
u
t Little Hocking's business address and phone number are: 3998 State Rt. 124, PO Box 188, Little Hocking, Ohio
45742 (phone: [phone]). However, any questions regarding these comments should be directed to my office at
513.721.2180.
2 DuPont
3 By email dated December 20, 2011, Amy Hartford of my office requested that the comment period for Public
Notice No. L-136-11 be extended to January 13, 2012. The extension to January 13 was not granted.
4 PFOA is also known as C8. RECEIVED JAN 0.0 2012
15 E 8th Street, Suite 200, Cincinnati, OH 45202
tele: 513.721.2180 1 fax: [phone] email: [e-mail]
4a
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January 3, 2012
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emits into the air is a source of the PFOA in Little Hocking's water supply. Given its unique
position as a "sink" for chemicals released by the Washington Works Plant, Little Hocking has a
substantial interest in the New Compound that is the subject of the Proposed Order.
Little Hocking has serious environmental and public health concerns about the Proposed
Order because, for example: (1) the New Compound is described by USEPA as an "analog" of
PFOA (as stated above, PFOA is already contaminating the wellfield and aquifer of Little
Hocking); (2) the USEPA previously expressed concerns that the New Compound will persist in
the environment, could bioaccumulate and be toxic to people, mammals, and birds (i.e., has
many of the same features as PFOA); and, (3) the Proposed Order would allow DuPont to begin
full-scale production of the New Compound before essential treatment upgrades are made to the
Washington Works Plant. These concerns are heightened by the lack of information readily
available to the public about the environmental and public health threats that may be presented
by the New Compound. These comments are more fully set forth below.
The Proposed Order fails to address (or even mention) the human health and
environmental concerns raised by USEPA in a 2009 TSCA consent order.
The Proposed Order states that DuPont represents that the new chemical has a
"favorable toxicological profile" and "rapid bioelimination." DuPont'S representations appear to
directly conflict with the concerns expressed by USEPA in a 2009 TSCA Consent Order (TSCA
Order) between DuPont and USEPA.
In fact, in the TSCA Order, USEPA expressed its "concerns that [ the New Compound]
will persist in the environment, could bioaccumulate, and be toxic ... to people, wild mammals,
and birds." With respect to bioelimination, USEPA concluded in 2009 that the limited worker
biomonitoring performed by DuPont: (1) did not take place over a long enough period of time to
see if accumulation occurred and (2) failed to apply an appropriately sensitive limit of detection.
Additionally, USEPA stated that "there is high concern for possible environmental effects over
the long-t:rm." If any of these issues were resolved, LHWA is unable to locate such resolution.
USEPA further stated that more information on the toxicity and pharmacokinetics of the
New Compound was needed based on: (1) the persistence of the New Compound, (2) the toxicity
of the New Compound and its analogs (PFOA and PFOS), and (3) the possibility or likelihood
that the New Compound may be used as a substitute for a major use of PFOA. USEPA stated
that, in particular, additional pharmacokinetic, reproductive, and long-term toxicological testing
on the New Compound in animals is warranted. USEPA concluded that the TSCA Order and its
limitations on manufacture and disposal of the New Compound would remain in effect until the
TSCA Order was modified or revoked by USEPA based on the submission of physical/chemical
property testing and environmental fate testing.
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West Virginia Department of Environmental Protection
January 3, 2012
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The Proposed Order fails to acknowledge, let alone address, the USEPA's prior findings
regarding the New Compound. What is more, the Proposed Order fails to mention whether all
testing required by the TSCA Order was submitted by DuPont, what the results of the testing
were, and whether WVDEP conducted an independent analysis of the environmental and public
health threats presented by the New Compound. In short, the public notice process employed by
WVDEP in this instance fails to allow for meaningful public input, as the relatively short time
for public comment did not allow the public sufficient time to make a public records request, to
resolve any disputes over such public records request (including any claims of confidentiality),
and to meaningfully review any information obtained pursuant to such a request.
Accordingly, Little Hocking asks that the WVDEP reconsider its issuance of the
Proposed Order until after an independent review by WVDEP of, for example, the following: (1)
the TSCA Order and its requirements; (2) the data underlying USEPA's prior TSCA findings and
conclusions; (3) any testing/studies that DuPont submitted to USEPA in connection with the
TSCA Order; and (4) public comments regarding the New Compound. What is more, WVDEP
should, due to the significant public health and environmental implications of the New
Compound and Proposed Order, communicate the result of this review to the public, and hold a
public hearing to allow members of the public to present their concerns regarding the New
Compound. The public hearing should allow members of the public to -ask questions of DuPont
and WVDEP officials. Finally, the public hearing should be scheduled with sufficient advance
notice to allow the public, including Little Hocking, sufficient time to make a public records
request, to resolve any disputes concerning the records requests (including any claim of
confidentiality), and to review all information obtained as a result of the public records requests.
There appears to have been no review of the impact that use, release, and disposal of the
New Compound will have on LHWA's users and its water supply.
As mentioned above, LHWA's water supply is believed to have the highest known PFOA
(an analog of the New Compound) levels of any public water supply in the country. Furthermore,
LHWA's water users are believed to have some of the highest reported concentrations of PFOA
in their blood of any non -worker population. In short, LHWA's members have been chronically
exposed to disproportionately high levels of PFOA in drinking water, as evidenced by the PFOA
concentrations present in their blood. Yet, there appears to be no consideration of the impacts
(for example, interactions between PFOA and the New Compound) that the New Compound
may have on a population already chronically exposed to disproportionately high levels of
PFOA. Indeed, there is no analysis of potential additive and/or synergistic impacts that may be
associated with the interaction of the New Compound with other chemicals (including PFOA).
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January 3, 2012
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What is more, the Proposed Order contains no adequate assurance that the New
Compound will not end up in the finished drinking water of LHWA, i.e., there is no assurance
that the New Compound will be effectively captured by existing carbon filtration.
The WVDEP should not enter into the Proposed Order until the impacts of the New
Compound on LHWA's users and water supply are considered and adequate precautions, if
necessary, are taken to protect LHWA's users and water supply.
The Proposed Order allows DuPont to begin commercial scale operations using the New
Compound before essential treatment upgrades are complete.
The Proposed Order allows commercial production using the New Compound and
generation of wastewaters to commence upon execution of the Proposed Order. Yet,
construction of wastewater treatment upgrades is not required to begin for as long as 24 months
after the effective date of the Proposed Order. Given the human and environmental health
questions that remain about the New Compound and in light of the USEPA's conclusion that
uncontrolled manufacture and disposal of the New Compound may present an unreasonable risk
of injury to human health and the environment, DuPont should at minimum be required to
complete the necessary treatment upgrades before commercial scale operations are permitted
under the Proposed Order.
The Proposed Order relies on DuPont's own interpretation of the 99% efficiency
requirement in the USEPA TSCA Order without independent interpretation by WVDEP
or confirmation from USEPA.
Tie USEPA TSCA Order requires DuPont to "recover and capture (destroy) or recycle
the [New Compound] at an overall efficiency of 99% from all the effluent process streams and
the air emissions (point source and fugitive)." The Proposed Order provides no information
about how and where the substances will be destroyed or recycled once captured, including
information about any associated post -treatment effluent discharges.
The Proposed Order states that DuPont interprets the TSCA Order's 99% efficiency
provision to be applied "in the aggregate on an annual basis for all sites where the new
compound is used." In short, DuPont seems to contend that the requirement would allow for
averaging across multiple processes/sources and even across multiple DuPont plants. However,
DuPont should be required to apply the 99% efficiency requirement to each source of the New
Compound, including effluent process streams and air emissions sources. Requiring 99%
efficiency on a source -by -source basis would be consistent with public policy, more protective of
human health and the environment than DuPont's interpretation, and be the more natural reading
of the 2009 TSCA Order. In addition, DuPont should be required to submit meaningful
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West Virginia Department of Environmental Protection
January 3, 2012
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information concerning how (including process flow diagrams) and where the substances will be
destroyed or recycled once captured, as well as verification testing to ensure that the 99% capture
efficiency requirement is being met (but only after WVDEP conducts the independent review
discussed above).
The Proposed Order provides no factual findings concerning WVDEP's determination that
a concentration of no more than 17.5 ug/l of the New Compound in the receiving stream
will be protective of West Virginia's narrative water quality standards.
Releases of other related chemicals, like C8, from DuPont's Washington Works Plant
are known to have contaminated local water supplies, including Little Hocking's. Little
Hocking, other water suppliers, and local residents have a right to full and complete information
on the basis for any discharge limits set by WVDEP. For example, the public is entitled to know
information concerning the additive and/or synergistic impacts associated with the New
Compound and its analogs, PFOA and PFOS, and the New Compound's time of travel in the
environment. Such information should at least be summarized in any proposed consent order and
made available for review by the public well in advance of any public hearing concerning the
Proposed Order.
The Proposed Order appears to exceed WVDEP's authority for modifying
administratively -extended permits.
The Proposed Order explicitly states that, since WVDEP has already administratively
extended DuPont's WV/NPDES permit, WVDEP cannot currently modify DuPont's
WV/NPDES permit to authorize the activities that are the subject of the Proposed Order. Thus,.
WVDEP appears to be using the Proposed Order as a means to circumvent applicable permitting
rules. The Proposed Order points to no statute, rule, or regulation that provides WVDEP with
the authority to enter into a consent order that effectively modifies a permit that is not otherwise
allowed to be modified. In fact, adherence to the permitting rules would necessarily result in a
more complete and thorough vetting of any health and environmental questions that remain
about the New Compound. The Proposed Order should precisely state the legal basis for
WVDEP's purported authority for entering the Proposed Order, if any such authority in fact
exists. Otherwise, WVDEP and DuPont should adhere to applicable permitting rules.
Please contact me (513.721.2180) if you any questions or concerns about the above.
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West Virginia Department of Environmental Protection
January 3, 2012
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cc: Kathy Cosco (via e-mail at Kathy.Cosco(a m. o�v)
Client
DEQ-CFW 00074116