Page 1 of 3 Ward Penberthy Deputy Director

Chemical Control Division

OPPT/ U.S. EPA

February 19 , 2013

Dear Ward:

Following on our recent discussions and the February 1, 2013, memorandum we received from Jeff Morris (EPA) regarding next steps for t he Siloxane Enforceable Consent Agreement (ECA) negotiation (Morris Memo), the primary purpose of this letter is to formally provide a revised environmental monitoring proposal from the member companies of the Silicones Environmental, Health, and Safety Ce nter (SEHSC) 1 , which we hope will lead to the conclusion of the ECA negotiations so that the proposed monitoring program can be commenced. Indeed, from the beginning of this process, the SEHSC member companies expressed a

desire and willingness to generat e additional environmental monitoring data. Thus, we are anxious to see the ECA negotiation process reach a productive conclusion in an efficient manner so that time and energies can be spent on actually collecting/analyzing environmental samples. In tha t regard, we have some questions and concerns about the “Next Steps” set out in the Morris Memo, which we discuss below following the summary of our revised proposal.

Revised Environmental Monitoring Proposal

SEHSC remains committed to the develo pment of a science

- based environmental monitoring program to support an ecological risk assessment for D 4 . As you know, SEHSC has a long history of collaborative engagement with regulatory authorities to develop and support risk and safety evaluations for silicone

materials. Consistent with our commitment to risk

- based environmental stewardship, and our desire to bring these ECA negotiations to a mutually

- agreeable conclusion, we are proposing to modify and augment our initial proposal ( i.e. , the March 1, 2012, letter with attachments from Karluss Thomas to Maria J. Doa, Ph.D.) (March 1, 2012 Proposal) to include five (5) additional municipal wastewater treatment plant (POTW) sites in the monitoring program set out in Appendix 2 of the March 1, 2012 Propos al. This means that environmental monitoring is proposed for a total of ten (10) POTW sites and four (4) SEHSC member company facilities that have direct discharges to surface waters. Certain other changes to the March 1, 2012 Proposal as set out in

1 SEHSC is an ACC sector group comprised of the following comp anies, which were formerly members of the Silicones
Environmental Health and Safety Council of North America: Bluestar Silicones USA Corporation; Dow Corning Corporation;
Evonik Goldschmidt Corporation; Milliken & Company; Momentive Performance Materials Inc.; Shin

- Etsu Silicones of America,
Inc.; and Wacker Chemical Corporation.Page 2 of 3 slid e 3 of the December 6, 2012 presentation offered by SEHSC at the December 6, 2012 Negotiation Meeting and in my December 18, 2012 letter to you should also be considered part of the revised proposal. 2

We believe adding 5 POTW sites to the proposed monitoring program not only strengthens an already robust proposal, but also demonstrates our willingness to compromise in order to bring the negotiations to a productive close. Importantly, we will also be continuing our voluntary global product stewards hip initiative (VPSI) which will provide additional useful environmental monitoring data that will inform a risk assessment

for D 4

. 3

Questions/Concerns Regarding Morris Memo

The Morris Memo states that EPA “is developing a risk assessment plan for D4 an d plans to have it reviewed in a peer consultation.” It also indicates that EPA will seek input from the reviewers on aspects of the SEHSC and EPA monitoring proposals and that “[a]dvice from the reviewers on monitoring data needs will inform the ECA nego tiations.” W e are concerned about how such a process fits into the context of the present ECA negotiations and how this would improve the outcome of the negotiations.

We note that the “Procedures for developing consent agreements” established by the Ag ency and promulgated as a rule in 40 C.F.R. § 790.22 do not provide for the inclusion of a peer consultation as part of the negotiation process. As provided for under those procedures, interested parties were provided with an opportunity at the outset of the ECA negotiation process to declare their interest in participating in the negotiations. By design this creates the opportunity for the Agency to receive input from interested parties with multiple perspectives on the matter. I t does not appear that th e inclusion of a peer

- consultation would , in this case and at this stage of the negotiation process, meaningfully improve the outcome of the ECA negotiations

. Moreover, it would considerably delay the start of monitoring, with an associated delay of the Agency’s plans for developing an ecological risk assessment for D 4

.

If the Ag ency does intend to further extend the ECA negotiations in order to insert a peer

- consultation into the process

— as noted in the Morris Memo

— we request that EPA address the following question s/issues during the next negotiation meeting:

1. Explain how the peer consultation process fits within the established regulations for developing ECAs, including, for example, the timeline, public involvement, and decision making set out in § 790.22.

2. Descri be how the Agency envisions the peer consultation process working.

a. Specifically, describe key steps, milestones, timeline, relationship to ECA and Risk
Assessment development process.

3. What criteria will the contractor use in selecting the peer consultant s?

4. What specific charge will be provided to the peer consultants?

5. What information will be made available to the peer consultants?

6. What work product will result from the peer consultancy? How and with whom will it be shared?

7. What opportunities will the in dustry have to provide information on its proposed monitoring plan and the scientific justification for it?

8. What opportunities will the public have to be involved in this process?

* * *

2 Specifically, these include elimination of monitoring biota (fish, benthic species) at the POTW sites and air monitoring at o ne

POTW site and the elimination of D 5 as a substanc e to be monitored in the program.

3 We have previously provided EPA with information on the VPSI

– see Attachment 2 to our March, 1, 2012 letter.Page 3 of 3 As we highlighted in our August 3, 2012 letter, SEHSC prepare d its March 1, 2012 Proposal in good faith based on feedback received from EPA taking into account best available science. We entered the negotiations which formally commenced on June 27, 2012 with an understanding that based on its review of the proposal EPA believed “that proceeding with the negotiation of a consent agreement is an efficient means of developing the data.” To bring these negotiations to a productive and efficient conclusion, we have modified our proposal based on Agency feedback, as desc ribed herein, and we trust that the Agency will carefully consider this revised proposal as well as the concerns highlighted above.

We look forward to discussing these and other items in more detail during the next negotiation meeting. In

the meanti me, should you have any questions or concerns, please do not hesitate to contact me.

Sincerely,

Karluss Thomas
Senior Director, SEHSC