# • SPILMAN THOMAS & 

# BATTLEpLLc ATTORNEYS AT LAW



### November 21,2011



### VIA HAND DELIVERY Mr. Yogesh Patel West Virginia Department ofEnvironmental Protection 601 57th Street, S.B. Charleston, WV 

### 25304



### Re: Executed Draft Consent Order No. 7418 Dear Yogesh, By

DirectDial: 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, WestVirginia 25321-0273 www.spilmanlaw.comI304.340.3800 I 304.340.3801 fax WestVirginia North Carolina Pennsylvania Virginia

# - der::>

west virginia department of environmental protection
Division ofWater 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 UNDERTHE WATERPOLLUTIONCONTROLACT WESTVIRGINIA CODE, CHAPTER22, 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

ORDERNO.: 7418

This Consent Order is issued by the Director ofthe Division ofWater and Waste Management, Department ofEnvironmental Protection, (hereinafter, the "Director") underthe authority ofChapter 22, Article 11, Section 1, et. seq. ofthe Code ofWest Virginiato E. 1. du Pont de Nemours and Company (hereinafter "DuPont"). 

### FINDINGS OFFACT
In support ofthis Order, the Directorhereby finds the following: 1. DuPont operates a multiple product line manufacturing facility and associated industrial wastewatertreatmentplant located in Washington, Wood County, West Virginia. This facility is known as the Washington Works Plant ("Facility" orthe "Plant"). 2. This Facility is permitted under WVINPDES PermitNo. WV0001279 (the "Permit"), issued August 4,2003 to authorize the Plant's point source discharges into the Ohio River ortributaries thereof.

3. In accordance with 47 CSR 10-4.3, DuPont timely applied for renewal ofthe Permit on December 20, 2007, over 180 days priorto the Permit's scheduled expiration date ofJune 30,2008.

Promoting a healthy environment.DuPont Washington Works Consent Order 7418 Page 2 of6 4. Since DuPont's submittal ofitsrenewal application, WVDEP has administratively extended the Permit. As ofthe date ofthis Consent Order, the Permitremains administratively extended until December 31, 2011. 5. DuPonthas developed patented technology for a new-generation processing aid for the production ofhigh-performance fluoropolymers using a new compound C3 Dimer Acid/Salt (CAS # 13252-13-6 and CAS # 62037-80-3) (hereafterthe "NewCompound"). DuPontrepresents thatthis technology is a sustainable solution that includes a new processing aid with a favorable toxicological profile and rapid bioelimination. DuPont further represents that itwill 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 byDuPont 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) orrecycle the New Compound "at an overall efficiency of99% from all the effluent streams and the air emissions (point source and fugitive)." This requirement is interpreted by DuPontto be applied in the aggregate on an annual basis, for all U.S. sites where the New Compound is used. The wastewatertreatment system for the Facility's fluoropolymers processes will be modified to achieve the TSCA Orderrequirements at present and future production capacity. 6. Atthis time, based on the results ofits ongoingresearch and development activities, DuPont is planning to undertake construction ofrelated upgrades to the Facility's wastewatertreatment system for fluoropolymers processes currently discharging through internal Outlets 102 and 305, in conjunction with the use ofthe New Compound, and to commencethe initial phase ofcommercial-scale production using the New Compound. 7. Theplanned upgrades to the fluoropolymers wastewatertreatment system include new higher efficiency processing aid recovery, addition ofa new reverse osmosis ("RO") system, and expansion ofthe existing carbon bed systems. 8. TheDirector cannot modify a WV/NPDES permitthat has been administratively extended beyond its original expiration date. Accordingly, WVDEP cannot currently modify the Permit to authorize DuPontto scale up the use oftheNew Compound, to discharge theNew Compound, and to undertake the related wastewater treatment plant upgrades described in Paragraphs 6-7, above. 9. DuPontprovided toxicity data to WVDEP in March of2011. Since that time, ongoing dialogue has occurred and additional information shared between the parties regarding the plannedupgrades andthe New Compound. On August 3, 2011, DuPontprovided additional toxicological information as well as plans to begin production using the New Compoundto the WVDEP. 10. The parties have entered into this Consent Order as the most expedient mechanism to allow DuPontto begin construction activities in connection with necessary upgrades to the wastewatertreatment system and to commence commercial scale production usingDuPont Washington Works Consent Order 7418 Page 3 of6 theNew Compound, as described in Paragraphs 5 and 6 above, pending the Director's renewal ofthe Permit. This Consent Order does not constitute and shall notbe construed as a finding by the Directorthat DuPonthas committed any violation(s) ofthe terms and conditions ofthe Permit.

### ORDERFORCOMWLMNCE Now, therefore, in accordance with Chapter22, Article 11, Section 1

### etseq. ofthe West Virginia Code, it is hereby ORDERED by the Director as follows: 1. DuPont shall undertake construction activities associated with the above-described wastewatertreatment 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 laterthan six months after the effective date ofthis Consent Order. b. Construction ofa new stage 1RO unit with new membrane technology for enhanced processing aid recovery shall be initiated no laterthan 12 months after the effective date ofthis Consent Order. c. Sub-micron filtration and additional RO units for recovery ofprocessing aid from previously non-recoverable process streams, and carbon beds for capture of processing aid shall be installed no laterthan 24 months afterthe effective date of this Consent Order. d. Additional carbon beds in W9 Line 1for enhanced abatement capability when carbon change-outs occur shall be installed no later than 24 months afterthe effective date ofthis Consent Order. e. Connection ofproduction areas to newrecovery/abatement system as reflected in the permit application shall occur no laterthan 24 months after the effective date ofthis Consent Order. 2. Duringthe period oftransition to the new processing aid and treatment system upgrades, wastewaters from fluoropolymers processes coveredby these changes shall continue to be treated by existing treatment facilities such that all wastestreams that are currently receivingtreatment via activated carbon will continue to receive such treatment. DuPont has indicated that the New Compound will require more frequent change-outs ofcarbon in the carbon beds in order to maintain treatment removal efficiencies. DuPont shall replace the lead bed ofgranulated activated carbon within seven (7) days ofdetecting break-through ofthe 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 ofdetecting such break-through until unspent carbon is in place to treatthat wastestream. Forpurposes ofthis Consent Order, "break-through"will be deemed to have occurredwhen concentrations ofthe New Compound are detected at 1mg/l or greater using the analytical method specified in Paragraph 5, below. This requirement shall applyto internal Outlets 102,305 and a new internal monitoring location being designated as internal Outlet 605. Further, DuPontDuPont Washington Works Consent Order 7418 Page 4 of6 shall operate and maintainthe granulated activated carbon beds at internal Outlets 102, 305 and 605 in a mannerto prevent the inhibition oftreatment ofother pollutants. 3. Based on the toxicological information provided and all other information available at this time, WVDEP has determined that a concentration ofno more than 17.5 ug/l ofthe New Compound in the receiving stream outside ofan applicable mixing zone will be protective ofWest Virginia's narrative water quality standards found in47 CSR 2, Section 3 ofthe West Virginia Legislative Rules. Tothis 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 ofthis 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 IIweek D 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 ofno more than 17.5 ug/l in the receiving stream outside ofthe 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 pursuantto Paragraph 4 above shall be analyzed by Liquid ChromatographylMass SpectrometrylMass Spectrometry ("LCIMSIMS") with a method detection limit ("MDL") of 1ug/l or less. Samples taken at internal Outlets 102, 305 and 605 pursuantto 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 pursuantto Paragraph 4 above shall be reported monthly to the WVDEP on the attachedDischarge Monitoring Reports ("DMRs"). In addition, DuPont shall maintain a log ofthe results ofthe daily monitoring required by Paragraph 4 at internal Outlets 102, 305 and 605, and shall submitthis log to WVDEP on a monthly basis as an attachmentto its DMR. 7. Commercial production using the New Compound and generating wastewaters for on-site treatment may commence upon the execution ofthis Order, subjectto compliance with the provisions ofthis Order. 8. This Consent Order may be reopened and revised by agreement oftheparties to prescribe additional and/or different requirements, including different monitoring requirements and/or increased or decreased discharge limitations, pursuantto any new information or dataregarding the New Compound. 9. This Order shall terminate upon notification by DuPontthatthe actions required by the Order ofCompliance have been completed andthe Director's written concurrence therewith or upon the issuance by WVDEP ofa renewed permit for the Facility that authorizes the activities covered bythis Orderthat have not been completed as ofthat time, whichever occurs earlier.



### OTHERPROVISIONS 1. DuPont hereby waives its right to appeal this Order underthe provisions ofChapter22, Article 11, Section 21 ofthe Code ofWest Virginia. Underthis Order, DuPont agrees to take all actions required bythe terms and conditions ofthis Order and consents to and will not contest the Director'sjurisdiction regarding this Order. However, DuPont does not admitto 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 otherthan proceedings, administrative orcivil, to enforce this Order. 2. Ifany event occurs which causes delay in the achievement oftherequirements ofthis Order, DuPont shall have the burden ofprovingthat 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 bythe lack ofsufficient funding. Within three (3) working days after DuPontbecomes aware ofsuch a delay, DuPont shall provide written notification to the Director. Withinten (10) working days ofinitial notification, DuPont shall submit a detailed written explanation ofthe anticipated length and cause ofthe delay, the measures taken and/orto be taken to prevent orminimize the delay, and a timetable bywhich DuPont intends to implementthese measures. litheDirector agrees that the delay has been orwill be caused by circumstances beyond the reasonable control ofDuPont (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 amendmentDuPont Washington Works Consent Order 7418 Page 6 of6 granted bythe Director shall be considered a binding extension ofthis Order and ofthe requirements herein. The determination oftheDirector shall be final andnot subjectto appeal. 3. Compliance with the terms and conditions ofthis Order shall not in any way be construed as relieving DuPont ofthe obligation to comply with any applicable law, permit, other order, or any other requirement otherwise applicable. Violations oftheterms and conditions ofthis Order may subject DuPontto additional penalties and injunctive relief in accordance withthe applicable law. 4. Theprovisions ofthis Order are severable and should a court or board ofcompetent 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.

PublicNotice begin: Date PublicNotice end: Date

Scott G. Mandirola, Director Division ofWater and Waste Management West Virginia Department ofEnvironmental Protection SGM:rt/mls Enclosure(s) cc: Environmental Inspector Environmental Inspector Supervisor EPARegion III Date