BEFORETHEENVIRONMENTAL APPEALS BOARD**~** r-> UNITEDSTATESENVIRONMENTALPROTECTIONAGENCY**~** c=J C;::o WASHINGTON,D.C. n 

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### w ) E. I. du Pontde Nemours ) DocketNo. TSCA-HQ-2004-0016 and Company ) DocketNo. RCRA-HQ-2004-0016 ) DocketNo. TSCA-HQ-2005-5001 Wilmington, DE ) ) ) Respondent ) ) WashingtonWorks Facility ) Route 892 SouthDuPont Road ) Washington, Wood County, WV ) 

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JOINTMOTIONTOAMENDTHE SETTLEMENT TOALLOWA SECONDEXTENSIONOFTHE COMPLETIONDATE FORRESPONDENT'SBIODEGRADATION SUPPLEMENTALENVIRONMENTALPROJECT (SEP)
The United States Envirorunental Protection Agency ("EPA" or "Complainant") and E.I du Pont de Nemours and Company ("DuPont" or "Respondent") (referred tojointlyas "the Parties") file this Joint Motion to Amend the Settlement to Allow a Second Extension of the Completion Date for Respondent's Biodegradation Supplemental Envirorunental Project (SEP) pursuant to 40 C
.F.R. §§ 22.4(a) and 22.16 ofthe Consolidated Rules ofPractice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension ofPermits (Rules ofPractice). In this Motion, the Parties respectfully request to modify Appendix A (also referred to as the Biodegradationor A) ofthe and Order (CAFO) by the Environmental Appeals Board on December 

### 21,2005, as amended on January 

### 2009, to PVT'''''"'rt the CompletionDate by two (2) and three 

### (3) months, to March 

### 27, 2014, and to incorporate several other changes to facilitate implementation the The inserted deadlines for certain deliverables, added flexibility duration offuture pilot and inserted a requirement that assures that the of residuals the test substance measured the contracted laboratory and the contracted biodegradation laboratory are substantially equivalent or that additional
are performed in of testing. The Parties believe good cause exists to grant the relief v""'v
...... " DuPont been working in faith on this project, major milestone activities been completed under the SEP so much the been performed, and additional time would provide an opportunity completion independent review of methods developed, performance ofcharacterizationtesting and performance biodegradation testing. The believe that the remaining DuPont obligation ofNovember 

### 30,2011) $2,265,237.00 (of 

### $5 million required under the CAFO) would be best used on completion ofthe A revised dated LJ'-"'-''-'H 

### 11 (Appendix AwithoutAttachments) is attached as**==~=-.**

original required that DuPont "will use best efforts to satisfactorily complete this

... no later than 

### (3) years from the date DuPont receives the of Environmental Board Completion Date")." (Section n.B. A the CAFO.) Parties stipulate that DuPont the on 

### 2005, that initial SEP Completion 

### 27,2008. On 

### 8, 2009, the Environmental was LJ
........ '.d' 2Appeals Board Motion to AVT,"
... r1 the for an additional (3) years from December 2008 to December 27, 2011. The Parties now to extend the Completion Date to March 27, 14. the

Appendix A, as amended in 2008, Semicontinuous Activated Sludge ("SCAS") Testing is to be conducted in order to determine ifcertain fluorotelomer based polymertest substances can biodegrade to perfluorooctanoic acid ("PFOA") or precursors PFOA. Full and detailed characterization ofthe order to distinguish whether any PFOA fluorotelomer based found after is that had bound to the polymerspriorto testing or PFOA was formed as a result biodegradation during SCAS testing. methods development this testing has challenging. Substantial time and expense have been invested in and validating methods for and identifying residuals and biodegradation products. Because these polymers were designed to and not to react with they are
more difficult to analyze than most "'''''>1,'''<4,,,

DuPont has performed many the tasks required in SEP since the prior extension oftime was DuPont purified nine 

### (9) Fluorotelomer Products under a "Purification Procedure and Products to by 1, 2009 as required. DuPont sought for proposals to laboratories to perform the characterization work and the biodegradation work. DuPontreceived proposals, obtained EPAapproval theproposedwork, selected laboratories

I The Purified FluorotelomerProducts and the Purification ProcedureAgreement are defined in SEP Aand are not herein. 3and entered into contracts to perform specified work
. The laboratories under contract with DuPont developed analytical methods and protocols. DuPont initiated the SCAS pilot test by January 30, 2010, as required
. DuPont completed the pilot test in September, 2010. DuPont established an independentpeerconsultation group through a Panel Administrator who sought panel nominations and selected panel members. The panel members held conference calls, toured the facility where the SCAS pilottesting was conducted and held ameeting to reviewresults ofthe biodegradationportion of the pilot study. Although analytical methods require additional optimization and validation, the work continues at an acceptable pace given the unexpected complications encountered as part of characterization. A detailed timeline ofthe activities performed since the first amendment to the SEP is attached as Exhibit2.

Future SEPActivities
Proper characterization ofthe fluorotelomer based polymer test substances provides information about the residuals in the test substance prior to performing the biodegradation testing. Thus, only with a clear picture of the test substance at the start of the biodegradation testing can the change in the chemical due to biodegradation be interpreted. This characterization involves looking for eighteen (18) different analytes. When the DuPont contract laboratory started the characterization testing, a problem arose concerning the use of gas chromatography/mass spectrometry ("GC/MS") analysis. Similarly, GC/MS analysis at the contract laboratory for biodegradation testing became a problem. Both laboratories experienced signal enhancement of certain analytes on the instruments when performing GC/MS. This signal enhancement resulted in unreliable data through this GC/MS method and DuPont sought a modification to the method to correct for the problem. The inability to 4characterize the test substance at the stalt ofthe SCAS pilot test also prevented the peer review panel from completing its report about the SCAS pilot test. DuPont consulted EPA on potential solutions to the dilemma and made multiple attempts to obtain reliable characterization data. These attempts have required much greater time and costs than was anticipated during the original settlement discussions. The Parties have decided to utilize liquidchromatography/mass spectrometry ("LC/MS") in lieu ofthe GC/MS method and are workingthrough method validation for this work
.

The Parties have established priorities for testing based on the cost information now available. The highest testing priorities are full characterization of at least one fluorotelomer based polymer test substance and completion ofa definitive full scale SCAS test on the polymer test substance that has been fully characterized. Although the SEP funding may be exhausted in completing a definitive full scale SCAS test on one polymer test substance, it is also possible that funding could remain for additional testing. There are four families ofpolymers involved among the nine (9) SEP fluorotelomer basedpolymertest substances: urethane-based, acrylate-based, methacrylate-based, and phosphate saltbased. The Parties have agreed that ifthere are available SEP funds, one polymer test substance from each family should be tested. Ofthe four (4) variants ofeach fluorotelomer based polymer discussed in the SEP, the Purified Fluorotelomer Product variant and the Lab-scale Synthesized Fluorotelomer Product variant ofeach the four families will be given higher priority for testing. The prioritization takes into account the unexpected high statt-up costs experienced in establishing validated test methods for these polymers. The priorities are adjusted as cost estimates become clearer and DuPont obtainsbetterinformation aboutthe testing.

5The believe that much ofthe preliminary work for performing biodegradation testing on the fluorotelomer basedpolymers has there have numerous in the preliminary stages ofthis project, there been effort devoted to overcoming obstacles and setting for testing. Ifthe this Joint Motion to Extend the SEP Completion Date, the Parties hope to able to perform the tests that have development for several years.

Criteria have added to the that establishes a mInImUm of greement must met between results of fluorotelomer polymer test substance characterization the characterization laboratory and results from analysis in polymer test substance as to units a trial run. trial run is to obtain time zero samples ("trial run time zero samples") by the biodegradation laboratory before the full scale definitive test begins. SEP now that DuPont demonstrate an understanding, via this trial run, of the residuals In polymer test prior to commencement of the full SCAS test and quantifying the residuals in the trial run time zero samples is to obtainingaccurate reliable results extent biodegradation, if at the of SCAS test. The also now requires that full SCAS should not initiated ifa comparison of(1)
sums the molar concentrations ofeach analyte reported by characterization laboratory for the polymer test sample to (2) sums the molar concentrations of analyte reported by the biodegradation laboratory the run time zero sample do not with a 95% molar EPA to accept a lesser level This is designed to address a concern that full could run the 6could be unreliable. If full does not commence to and the results from the trial run zero samples not meeting data of 95% molar equivalence, and if not to pursue full of that disagreement, and assuming remains, then the revised to certain additional to

proposed a new section (Section VI) that DuPont to purchase research equipment and chemicals universities or state labs approved by iffull scale SCAS testing does not commence as above. The cost of one million five hundred thousand ($1,500,000). Any equipment will be made in accordance with 1998 Policy2. The items are instruments or reference "CUlI
... '.U laboratories relate to the PFOA initial These items are to on the presence of and research on to form PFOA. These occur ifthere is a full scale definitive on a Purified FluorotelomerProduct and one Corresponding Polymers and the that the remaining funds are not likely to be to complete a second full scale definitive test.

The EPA 1998 SEP and related is found at 7DuPont has performed an initial pilot test. The SCAS pilot test is a preliminary trial to make
sure instrumentation proposed the method will work. The pilot test provides information primarily on appropriateness of hardware to be used in the scale testing. Section JU.3.a. the Biodegradation states, "The laboratory performing the biodegradation conduct one 1 pilot test on the Products been pilottesting as identified in Attachment and shall conductone 14-daypilottest SCAS oneach ofthe Corresponding Polymers that have selected pilot as identified in Attachment A, to develop test data that can inform protocol decisions
...." Because polymer test
are all fluorotelomer products, they tend to share ofthe same
as the polymertest in the initial 14-day pilottest. The initial 14-daypilot test been performed and has about many of protocol decisions. Because future test substances could be using test similar to those used the initial pilot test, Parties believe future pilot studies may only need to a days to inform the protocol decisions. The have subsequent pilot tests shall conducted up to fourteen (14) days, with the exact number days to be determined EPAprior to the start of pilottest. Such a is to allow for more and time pilot while also providing technical information.

8

### PostingReports on theInternet original SEP !;llU'C"U an Administrative Record (AR-226) for documents concerning this public could obtain documents from by requesting copies would provided copy or on disk. allows public to search documents at any without need EPA to respond to a request. A file as EPA-HQ-OPPT-2011-0991 has been created Regulations.gov for this SEP the requirement site

U>,"""-£,,,V postingto is changed to new file on In addition, otherdocuments submitted to EPA, as monthly reports and will now be posted to this new web site. Posting documents to this web allows
..."".au,,,public access.

For the foregoing ""''''Vll.:>, the request this Joint Motion to Amend the Settlement to Allow a

GRANTED.

9Respondent's BiodegradationSupplemental EnvironmentalProject(SEP) DocketNos. TSCA-HQ-2004-0016,RCRA-HQ-2004-0016, and TSCA-HQ-2005-S001

ChemicalsEnforcement Enforcement (2249A) Protection Agency 1200 PennsylvaniaAvenue,N.W. DC 20460

Date AndreaV. Malinowski CorporateCounsel DuPont
302-774-6443 1007 Market Wilmington,

]0CERTIFICATE OF SERVICE

I certify thatthe original ofthe abovejointMotion to Amend the Settlementto Allowa Second Extension ofthe CompletionDatefor Respondent's Biodegradation Supplemental Environmental Project(SEP)Docket Nos. TSCA-HQ-2004-0016, RCRA-HQ-2004-0016, and TSCA-HQ-2005-5001 were filed withthe Environmental Appeals Board HearingClerkand thatcopies were sent: Hand carried to: EurikaDurr,Clerk ofthe Board U.S. Environmental Protection Agency Environmental Appeals Board Colorado Building 1341 G Street, N
.W., Suite 600 Washington, D.C. 20005
Byemail and U.S. Mail to: Andrea V. Malinowski Corporate Counsel DuPontLegalD-7078 1007 Market Street Wilmington, DE 19898 andrea
.v.malinowski@usa.dupont.com

Tony Ellis 

# rDate: 

# IcO 

# 1.9. .3

# ! I(**--~~ ~~r** **~+-** Waste and Chemicals EnforcementDivision Office ofCivil Enforcement U.S. Environmental Protection Agency (2245A) 1200 PennsylvaniaAvenue,N
.W. Washington, DC 20460

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