BEFORE THE ENVIRONMENTAL APPEALS BOARD ~ r-> 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ~ 

WASHINGTON, D.C. c=J C;::o

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E. I. du Pont de Nemours ) Docket No. TSCA-HQ-2004-00 16 

and Company ) Docket No. RCRA-HQ-2004-00 16 

) Docket No. TSCA-HQ-2005-5001 


Wilmington, DE ) 


) 

) 


Respondent ) 


) 

Washington Works Facility ) 


Route 892 South DuPont Road ) 


Washington, Wood County, WV ) 


------------------------) 

JOINT MOTION TO AMEND THE SETTLEMENT 

TO ALLOW A SECOND EXTENSION OF THE COMPLETION DATE 

FOR RESPONDENT'S BIODEGRADATION 

SUPPLEMENTAL ENVIRONMENTAL PROJECT (SEP) 

The United States Envirorunental Protection Agency ("EPA" or "Complainant") and E.I du Pont de 

Nemours and Company ("DuPont" or "Respondent") (referred to jointly as "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 of the Consolidated Rules of Practice Governing the Administrative Assessment of 

Civil Penalties and the Revocation/Termination or Suspension of Permits (Rules of Practice). In this 

Motion, the Parties respectfully request to modify Appendix A (also referred to as the Biodegradation 
or A) of the and Order (CAFO) by the Environmental 

Appeals Board on December 21,2005, as amended on January 2009, to PVT'''''"'rt the Completion Date 

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 of future 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 of characterization testing and performance biodegradation testing. The believe 

that the remaining DuPont obligation of November 30,2011) $2,265,237.00 (of $5 million 

required under the CAFO) would be best used on completion of the A revised 

dated LJ'-"'-''-'H 11 (Appendix A without Attachments) 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 was LJ ........'.d' 
 27,2008. On 8, 2009, the Environmental 

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Appeals 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 if certain fluorotelomer based polymer test substances can biodegrade 

to perfluorooctanoic acid ("PFOA") or precursors PFOA. Full and detailed characterization of the 

fluorotelomer based order to distinguish whether any PFOA

found after is that had bound to the polymers prior to 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 of time 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. 

DuPont received proposals, obtained EPA approval the proposed work, selected laboratories 

I The Purified Fluorotelomer Products and the Purification Procedure Agreement are defined in SEP A and are not herein. 

3 
and 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 

independent peer consultation 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 pilot testing was conducted and held a meeting to review results of the biodegradation portion 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 of the activities performed since the first amendment to the SEP 

is attached as Exhibit 2. 

Future SEP Activities 

Proper characterization of the 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 

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characterize the test substance at the stalt of the 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 liquid chromatography/mass spectrometry ("LC/MS") in lieu of the 

GC/MS method and are working through 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 of a 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 of polymers involved among the nine (9) SEP fluorotelomer 

based polymer test substances: urethane-based, acrylate-based, methacrylate-based, and phosphate saltbased. The Parties have agreed that if there are available SEP funds, one polymer test substance from 

each family should be tested. Of the four (4) variants of each fluorotelomer based polymer discussed 

in the SEP, the Purified Fluorotelomer Product variant and the Lab-scale Synthesized Fluorotelomer 

Product variant of each 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 

obtains better information about the testing. 

5 
The believe that much of the preliminary work for performing biodegradation testing on the 

fluorotelomer based polymers has there have numerous 

in the preliminary stages of this project, there been effort devoted to overcoming 

obstacles and setting for testing. If the 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 obtaining accurate 

reliable results extent biodegradation, if at the of SCAS test. 

The also now requires that full SCAS should not initiated if a comparison of (1) 

sums the molar concentrations of each 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 

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could 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 if full 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 if there 

is a full scale definitive on a Purified Fluorotelomer Product 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 

7 
DuPont 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 pilot testing as identified in Attachment and shall conduct one 14-day pilot test 

SCAS on each of the 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 of the same 

as the polymer test in the initial 14-day pilot test. The initial 14-day pilot 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 EPA prior to the start of pilot test. 

Such a is to allow for more and time pilot while also 

providing technical information. 

8 
Posting Reports on the Internet 

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 EP A to respond to a request. A file as 

EPA-HQ-OPPT-2011-0991 has been created Regulations.gov for this SEP the requirement 

site 

posting to U>,"""-£,,,V is changed to new file on In addition, other documents 

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. 

9 
Respondent's Biodegradation Supplemental Environmental Project (SEP) 


Docket Nos. TSCA-HQ-2004-0016, RCRA-HQ-2004-0016, and TSCA-HQ-2005-S001 


Chemicals Enforcement 

Enforcement (2249A) 

Protection Agency 

1200 Pennsylvania Avenue, N.W. 

DC 20460 

Date Andrea V. Malinowski 

Corporate Counsel 

DuPont 

302-774-6443 

1007 Market 

Wilmington, 

]0 

CERTIFICATE OF SERVICE 


I certify that the original of the above joint Motion to Amend the Settlement to Allow a Second Extension 

of the Completion Date for Respondent's Biodegradation Supplemental Environmental Project (SEP) Docket 

Nos. TSCA-HQ-2004-0016, RCRA-HQ-2004-0016, and TSCA-HQ-2005-5001 were filed with the 

Environmental Appeals Board Hearing Clerk and that copies were sent: 

Hand carried to: 

Eurika Durr, Clerk of the Board 

U.S. Environmental Protection Agency 

Environmental Appeals Board 

Colorado Building 

1341 G Street, N. W., Suite 600 

Washington, D.C. 20005 

By email 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. ~~r.3 ! ~+- I (

Waste and Chemicals Enforcement Division 

Office of Civil Enforcement 

U.S. Environmental Protection Agency (2245A) 


1200 Pennsylvania Avenue, N. W. 


Washington, DC 20460 


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