• SPILMAN THOMAS & BATTLEpLLc 

ATTORNEYS AT LAW 

November 21,2011 

VIA HAND DELIVERY 

Mr. Y ogesh Patel 

West Virginia Department of Environmental Protection 

601 57th Street, S.B. 

Charleston, WV 25304 

Re: Executed Draft Consent Order No. 7418 

Dear Yogesh, 

By 

Direct Dial: 304-340-3832 

kcrocketl@spilmanlaw.com 

Please find enclosed for your records the original copy of the above-referenced draft 

Consent Order, as executed on behalf of B. I. du Pont de Nemours and Company on 

November 18,2011. 

Should you have any questions, please do not hesitate to call me at (304) 340-3832. 

Thank you for your continued attention to this matter. 

Very truly yours, 

MKC:ksw 

~~ 

Enclosure 

Spilman Center I 300 Kanawha Boulevard, East I Post Office Box 273 I Charleston, West Virginia 25321-0273 

www.spilmanlaw.comI304.340.3800 I 304.340.3801 fax 

West Virginia North Carolina Pennsylvania Virginia 
-der::> 

west virginia department of environmental protection 

Division of Water and Waste Management 

601 57th Street SE 

Charleston, WV 25304-2345 

Telephone Number: (304) 926-0495 

Fax Number: (304) 926-0463 

CONSENT ORDER 

Earl Ray Tomblin, Governor 

Randy C. Huffinan, Cabinet Secretary 

www.dep.wv.gov 

ISSUED UNDER THE 

WATER POLLUTION CONTROL ACT 

WEST VIRGINIA CODE, CHAPTER 22, ARTICLE 11 

TO: E. 1. du Pont de Nemours and Company 

Washington Works 

clo Karl J. Boelter, Plant Manager 

P. O. Box 1217 

Washington, WV 26181-1217 

INTRODUCTION 

DATE: 11118/2011 

ORDER NO.: 7418 

This Consent Order is issued by the Director of the Division of Water and Waste 

Management, Department of Environmental Protection, (hereinafter, the "Director") under the 

authority of Chapter 22, Article 11, Section 1, et. seq. of the Code of West Virginia to E. 1. du 

Pont de Nemours and Company (hereinafter "DuPont"). 

FINDINGS OF FACT 

In support ofthis Order, the Director hereby finds the following: 

1. DuPont operates a multiple product line manufacturing facility and associated industrial 

wastewater treatment plant located in Washington, Wood County, West Virginia. This 

facility is known as the Washington Works Plant ("Facility" or the "Plant"). 

2. This Facility is permitted under WVINPDES Permit No. WV0001279 (the "Permit"), 

issued August 4,2003 to authorize the Plant's point source discharges into the Ohio 

River or tributaries thereof. 

3. In accordance with 47 CSR 10-4.3, DuPont timely applied for renewal of the Permit on 

December 20, 2007, over 180 days prior to the Permit's scheduled expiration date of June 

30,2008. 

Promoting a healthy environment. 
DuPont Washington Works 

Consent Order 7418 

Page 2 of6 

4. Since DuPont's submittal ofits renewal application, WVDEP has administratively 

extended the Permit. As of the date of this Consent Order, the Permit remains 

administratively extended until December 31, 2011. 

5. DuPont has developed patented technology for a new-generation processing aid for the 

production of high-performance fluoropolymers using a new compound C3 Dimer 

Acid/Salt (CAS # 13252-13-6 and CAS # 62037-80-3) (hereafter the "New Compound"). 

DuPont represents that this technology is a sustainable solution that includes a new 

processing aid with a favorable toxicological profile and rapid bioelimination. DuPont 

further represents that it will utilize environmental control technologies that reduce 

environmental release and exposure. The U.S. EPA, through a Toxic Substances Control 

Act Section 5(e) Consent Order ("TSCA Order") executed by DuPont on January 28, 

2009, granted DuPont approval, under conditions set forth in the TSCA Order, to 

commercially manufacture, process, and distributes the processing aid. The TSCA Order 

requires that DuPont shall recover and capture (destroy) or recycle the New Compound 

"at an overall efficiency of 99% from all the effluent streams and the air emissions (point 

source and fugitive)." This requirement is interpreted by DuPont to be applied in the 

aggregate on an annual basis, for all U.S. sites where the New Compound is used. The 

wastewater treatment system for the Facility's fluoropolymers processes will be modified 

to achieve the TSCA Order requirements at present and future production capacity. 

6. At this time, based on the results of its ongoing research and development activities, 

DuPont is planning to undertake construction of related upgrades to the Facility's 

wastewater treatment system for fluoropolymers processes currently discharging through 

internal Outlets 102 and 305, in conjunction with the use of the New Compound, and to 

commence the initial phase of commercial-scale production using the New Compound. 

7. The planned upgrades to the fluoropolymers wastewater treatment system include new 

higher efficiency processing aid recovery, addition of a new reverse osmosis ("RO") 

system, and expansion of the existing carbon bed systems. 

8. The Director cannot modify a WV /NPDES permit that has been administratively 

extended beyond its original expiration date. Accordingly, WVDEP cannot currently 

modify the Permit to authorize DuPont to scale up the use ofthe New Compound, to 

discharge the New Compound, and to undertake the related wastewater treatment plant 

upgrades described in Paragraphs 6-7, above. 

9. DuPont provided toxicity data to WVDEP in March of2011. Since that time, ongoing 

dialogue has occurred and additional information shared between the parties regarding 

the planned upgrades and the New Compound. On August 3, 2011, DuPont provided 

additional toxicological information as well as plans to begin production using the New 

Compound to the WVDEP. 

10. The parties have entered into this Consent Order as the most expedient mechanism to 

allow DuPont to begin construction activities in connection with necessary upgrades to 

the wastewater treatment system and to commence commercial scale production using 
DuPont Washington Works 

Consent Order 7418 

Page 3 of6 

the New Compound, as described in Paragraphs 5 and 6 above, pending the Director's 

renewal of the Permit. This Consent Order does not constitute and shall not be construed 

as a finding by the Director that DuPont has committed any violation(s) of the terms and 

conditions of the Permit. 

ORDERFORCOMWLMNCE 

Now, therefore, in accordance with Chapter 22, Article 11, Section 1 et seq. of the West 

Virginia Code, it is hereby ORDERED by the Director as follows: 

1. DuPont shall undertake construction activities associated with the above-described 

wastewater treatment plant upgrades in accordance with the following schedule: 

a. Modifications to the Granular Mother Liquor ("GML")lLamella system to 

achieve enhanced solids removal shall be initiated no later than six months after 

the effective date of this Consent Order. 

b. Construction of a new stage 1 RO unit with new membrane technology for 

enhanced processing aid recovery shall be initiated no later than 12 months after 

the effective date ofthis Consent Order. 

c. Sub-micron filtration and additional RO units for recovery of processing aid from 

previously non-recoverable process streams, and carbon beds for capture of 

processing aid shall be installed no later than 24 months after the effective date of 

this Consent Order. 

d. Additional carbon beds in W9 Line 1 for enhanced abatement capability when 

carbon change-outs occur shall be installed no later than 24 months after the 

effective date of this Consent Order. 

e. Connection of production areas to new recovery/abatement system as reflected in 

the permit application shall occur no later than 24 months after the effective date 

ofthis Consent Order. 

2. During the period of transition to the new processing aid and treatment system upgrades, 

wastewaters from fluoropolymers processes covered by these changes shall continue to 

be treated by existing treatment facilities such that all wastestreams that are currently 

receiving treatment via activated carbon will continue to receive such treatment. DuPont 

has indicated that the New Compound will require more frequent change-outs of carbon 

in the carbon beds in order to maintain treatment removal efficiencies. DuPont shall 

replace the lead bed of granulated activated carbon within seven (7) days of detecting 

break-through of the New Compound from the lead bed while maintaining an effective 

polish bed in the system or cease discharge from the affected carbon bed system. Should 

monitoring detect break-through from the final polish bed, DuPont shall cease discharge 

from the affected carbon bed system within 24 hours of detecting such break-through 

until unspent carbon is in place to treat that wastestream. For purposes of this Consent 

Order, "break-through" will be deemed to have occurred when concentrations of the New 

Compound are detected at 1 mg/l or greater using the analytical method specified in 

Paragraph 5, below. This requirement shall apply to internal Outlets 102,305 and a new 

internal monitoring location being designated as internal Outlet 605. Further, DuPont 
DuPont Washington Works 

Consent Order 7418 

Page 4 of6 

shall operate and maintain the granulated activated carbon beds at internal Outlets 102, 

305 and 605 in a manner to prevent the inhibition of treatment of other pollutants. 

3. Based on the toxicological information provided and all other information available at 

this time, WVDEP has determined that a concentration of no more than 17.5 ug/l ofthe 

New Compound in the receiving stream outside of an applicable mixing zone will be 

protective of West Virginia's narrative water quality standards found in 47 CSR 2, 

Section 3 ofthe West Virginia Legislative Rules. To this end, WVDEP has established 

the discharge limitations for the New Compound as set out in Paragraph 4, below. 

4. DuPont shall adhere to the following limitations and perform the following selfmonitoring for the New Compound during the term of this Order in accordance with the 

following: 

Monthly Maximum Monitoring Sample 

Outlet Avera2e Daily Units Frequency Ty~e 

102A Monitor Monitor ug/l IIdayD Grab 

102B Monitor Monitor ug/l IIweekD Grab 

30SA Monitor Monitor ug/l IIdayD Grab 

30SB Monitor Monitor ug/l IIweekD Grab 

60SA,c Monitor Monitor ugll IIdayD Grab 

60SB,c Monitor Monitor ug/l IIweekD Grab 

002 77E 112E ug/l IIweek 24-hour 

Composite 

005 191E 278E ug/l IIweek 24-hour 

Composite 

A Monitoring location after exiting lead activated carbon bed and prior to entering polish 

activated carbon bed. 

B Monitoring location after exiting the polish activated carbon bed. 

C Discharge from carbon treatment system located in building 127. 

D When discharging. 

E As discussed in Paragraph 3, above, these limits have been calculated to ensure a 

concentration of no more than 17.5 ug/l in the receiving stream outside of the applicable 

mixing zone, as determined by application of the mixing zone dilution factor for the 

respective outlet specified in the current Fact Sheet for the Permit. 

5. Samples taken at Outlets 002 and 005 pursuant to Paragraph 4 above shall be analyzed by 

Liquid ChromatographylMass SpectrometrylMass Spectrometry ("LCIMSIMS") with a 

method detection limit ("MDL") of 1 ug/l or less. Samples taken at internal Outlets 102, 

305 and 605 pursuant to Paragraph 4 above shall be analyzed by Liquid Chromatography 

("LC") or Gas Chromatography ("GC") per internal plant method with an MDL of 1 mg/l 

or less. 
DuPont Washington Works 

Consent Order 7418 

Page 5 of6 

6. Outlet results for sampling performed pursuant to Paragraph 4 above shall be reported 

monthly to the WVDEP on the attached Discharge Monitoring Reports ("DMRs"). In 

addition, DuPont shall maintain a log of the results of the daily monitoring required by 

Paragraph 4 at internal Outlets 102, 305 and 605, and shall submit this log to WVDEP on 

a monthly basis as an attachment to its DMR. 

7. Commercial production using the New Compound and generating wastewaters for on-site 

treatment may commence upon the execution ofthis Order, subject to compliance with 

the provisions of this Order. 

8. This Consent Order may be reopened and revised by agreement ofthe parties to prescribe 

additional and/or different requirements, including different monitoring requirements 

and/or increased or decreased discharge limitations, pursuant to any new information or 

data regarding the New Compound. 

9. This Order shall terminate upon notification by DuPont that the actions required by the 

Order of Compliance have been completed and the Director's written concurrence 

therewith or upon the issuance by WVDEP of a renewed permit for the Facility that 

authorizes the activities covered by this Order that have not been completed as of that 

time, whichever occurs earlier. 

OTHER PROVISIONS 

1. DuPont hereby waives its right to appeal this Order under the provisions of Chapter 22, 

Article 11, Section 21 ofthe Code of West Virginia. Under this Order, DuPont agrees to 

take all actions required by the terms and conditions of this Order and consents to and 

will not contest the Director's jurisdiction regarding this Order. However, DuPont does 

not admit to any factual and legal determinations made by the Director and reserves all 

rights and defenses available regarding liability or responsibility in any proceedings 

regarding DuPont other than proceedings, administrative or civil, to enforce this Order. 

2. Ifany event occurs which causes delay in the achievement ofthe requirements of this 

Order, DuPont shall have the burden of proving that the delay was caused by 

circumstances beyond its reasonable control which could not have been overcome by due 

diligence (i.e., force majeure). Force majeure shall not include delays caused or 

contributed to by the lack of sufficient funding. Within three (3) working days after 

DuPont becomes aware of such a delay, DuPont shall provide written notification to the 

Director. Within ten (10) working days of initial notification, DuPont shall submit a 

detailed written explanation of the anticipated length and cause of the delay, the measures 

taken and/or to be taken to prevent or minimize the delay, and a timetable by which 

DuPont intends to implement these measures. lithe Director agrees that the delay has 

been or will be caused by circumstances beyond the reasonable control of DuPont (i.e., 

force majeure), the time for performance hereunder shall be extended for a period oftime 

equal to the delay resulting from such circumstances. A force majeure amendment 
DuPont Washington Works 

Consent Order 7418 

Page 6 of6 

granted by the Director shall be considered a binding extension ofthis Order and of the 

requirements herein. The determination ofthe Director shall be final and not subject to 

appeal. 

3. Compliance with the terms and conditions ofthis Order shall not in any way be construed 

as relieving DuPont of the obligation to comply with any applicable law, permit, other 

order, or any other requirement otherwise applicable. Violations ofthe terms and 

conditions of this Order may subject DuPont to additional penalties and injunctive relief 

in accordance with the applicable law. 

4. The provisions of this Order are severable and should a court or board of competent 

jurisdiction declare any provisions to be invalid or unenforceable, all other provisions 

shall remain in full force and effect. 

5. This Order is binding on DuPont, its successors and assigns. 

This Order shall become effective upon the date on which a true and correct copy ofthis fully 

executed Order is received by DuPont. 

Public Notice begin: 

Date 

Public Notice end: 

Date 

Scott G. Mandirola, Director 

Division of Water and Waste Management 

West Virginia Department of Environmental Protection 

SGM:rt/mls 

Enclosure( s) 

cc: Environmental Inspector 

Environmental Inspector Supervisor 

EPA Region III 

Date