Inside EPA 

# EPA Urged To Require Additional PFOA Data From DuPont To Aid Rules

Posted: April 19, 2013

A lawyer representing thousands of citizens potentia lly exposed to perfluorooctanoic acid (PFOA) in their drinking water due to releases from a DuPont-owned West Virginia plant is pressing EPA to force the company to supply additional monitoring data on th e contamination that would help EPA fill data gaps and issue PFOA drinking water regulations.

Attorney Robert Bilott with the law firm Taft Stetti nius & Hollister contends DuPont long ago promised under a voluntary agreement with EPA to supply data regarding its Washington Works Plant in Wood County, WV, which used PFOA, a non-stick agent that has been linked to a variety of adverse health effects, in manufacturing. In separate legal proceed ings, Taft represented about 80,000 people in a classaction suit, settled with DuPont in 2005, over expo sures to drinking water supplies contaminated by the plant’s operations.

Bilott April 8 wrote to EPA Chemical Control Division Director Maria Doa and other EPA staff on behalf of thousands of individuals with contaminated drinking wa ter at the site, charging that DuPont has failed to conduct all the necessary monitoring the company agreed to under a memorandum of understanding (MOU) with EPA and urging the agency to require DuPont to provide the additional data sought.

DuPont has had a decade-long “free pass” from EPA regulatory and enforcement actions due to commitments it made to the agency to work voluntar ily to provide the needed monitoring data related to the Washington Works site, Bilott argues . A final monitoring report, know n as the Phase III report, that DuPont submitted to EPA late last year “makes clear, however, that neither the Agency nor the interested parties will ever receive the benefit that was promised in return more than ten years ago: the monitoring data,” he writes. The company refuses to provide the additional data, he says.

“For more than ten years, Dupont has been able to citeto this very same allege d lack of monitoring data as a reason why US EPA should not proceed with fin alizing its decade-old PFOA risk assessments or release new drinking water regulations,” Bilott says. DuPont previously promised to fill these data gaps, he says.

Bilott contends it is now clear Dupont’s promise to voluntarily produce moni toring data was hollow, therefore EPA “should take those steps necessary to immediately force DuPont to provide whatever additional monitoring data is needed to address any remaining PFOA data gaps.”

In 2001, the law firm first urged EPA to obtain monitori ng data from DuPont to address on-going threats to human health and the environment from the Washington Works Plant and area landfills where PFOA wastes were sent, according to the letter. The firm re quested EPA order an assess ment of these releases under the Toxic Substances Control Act (TSCA) and ot her laws. EPA soon after developed a draft hazard and risk assessment indicating that due to toxicity and carcinogenicit y data and blood monitoring data, “PFOA might require formal regulatory action by US EPA under TSCA,” the letter says.

Voluntary Data CollectionBut DuPont and other companies instead offered to voluntarily provide data they believed EPA should consider before finalizing risk or hazard assessments or taking formal action under TSCA, the letter says. EPA nonetheless announced that additional data may be needed beyond that volunteered, and said it would develop enforceable consent ag reements (ECAs) under TSCA to pu t in place an industry-sponsored testing program for PFOA. The agreements would focus on pointing to environmental fate and transport data and other information key to understanding the sources of PFOA and pathways to human exposure, the letter says, citing EPA.

Instead, EPA agreed to back off on moving forwar d with the ECAs and responded to DuPont’s alleged push to use an unenforceable MOU with the company to collect additional data, according to the letter.

By the end of the MOU negotiations, it was clear EP A expected Phase III work under the MOU “to include collection of whatever additional air, soil, water, se diment, biota, and off-site monitoring data ultimately were considered to be appropriate by the peer review panel that was created under the MOU,” Bilott says.

Previous Phase I and II monitoring da ta were found to be inadequate to address EPA’s needs, according to a 2009 final peer consultation report conducted as part of the peer review process created under the MOU, Bilott says. This report identified a list of in adequacies to be addressed by the company in the Phase III work, including “inadequate evaluation of air emissions from landfills; failure to take actual air samples and other media samples more than 2 miles from the Plant site; failure to consider air emissions from the Little Hocking Service center; failure to sample surface water other than the Ohio River . . ., and farm ponds, or sediments in such locations,” and fa ilure to sample farm and home-grown produce, fish and game, he says.

EPA told DuPont it agreed with the peer review pa nel’s comments, but both EPA and DuPont disagreed on the necessary Phase III work, the letter says.

Because DuPont is taking the position that the final Phase III report completes all of the MOU’s requirements, “it is clear that DuPont is simply refu sing to collect any of the other recommended and/or requested monitoring data, leaving the exact same data gaps with respect to those media that existed when this whole ‘voluntary’ process began more than a decade ago,” the letter says.

The attorney argues it is clear DuPont will not provid e the data “until forced to do so through appropriate legal action.”

DuPont’s “empty promises” have allowed it “to ve ry effectively delay and thwart the collection and analysis of important PFOA monitoring data for more than a decade -- long enough that much of the data now no longer exists (e.g., most of the exposed cattle and impacted wildlife are now long-dead) and the ability to detect the true levels of exposure have greatly diminished (as the PFOA blood/tissue levels drop over time). US EPA should not allow DuPont to e ffectively control and manipulate the overall PFOA monitoring data set in this manner or benefit from perp etuation of the monitoring data gaps by citing to such gaps as a basis for not finalizing the Agency’s now decade-old PFOA risk assessment or human drinking water standards,” he says.

Bilott says this is particularly the case now that the independent panel of scientis ts -- formed as a result of the class-action suit settlement with DuPont -- has linked PFOA exposures to several adverse health effects, including testicular and kidney cancer, ulcera tive colitis, thyroid disease, hypercholesterolemia and pregnancy-induced hypertension in resi dents exposed to PFOA in drinking water.

Additional Monitoring RequestedThe attorney, on behalf of the clients exposed to dr inking water contamination, repeats a request made in 2001 to EPA, that it act now through formal enforcement and/or legal action under TSCA to require the additional PFOA monitoring data from DuPont.

It will be several years before any drinking water standards may be developed. EPA has a provisional drinking water health advisory for PFOA of 0.4 ppb, bu t that is only for short-term exposures and does not address long-term exposures. The agency in a letter last September told Taft attorneys that it was updating its health risk assessment for PFOA, noting that a reference dose or cancer slope factor is needed in order for EPA to determine what health advisory value or health reference level to use.

“Reaching this point in the assessment has been d ifficult because of the number of new publications continually entering the public sphere and PFOA’s co mplex toxicokinetics,” EPA water chief Nancy Stoner said at the time in the letter.

The agency this year began requiring utilities to mo nitor for the occurrence of PFOA in drinking water -- an effort that will last until 2015. This data together with the pending risk assessment will help determine whether the agency should set an enforceable drinking water cleanup standard for the chemical.

“The agency expects that we will have sufficient info rmation to determine whethe r it is appropriate to develop a drinking water regulation for PFOA within th e next 5 to 7 years,” Stoner said in the letter.

An EPA spokesman said at press time the agency is not commenting at this point on the letter from Bilott.

A DuPont spokeswoman could not be reached for comment by press time. In its Phase III report , DuPont says it did modify the scope of work under Phase III in 2011 in response to an EPA request. The report indicates DuPont conducted sampling on homegrow n produce, finding two of 103 samples showing detectable levels of PFOA, and untreated irrigation wa ter, finding levels of up to 10 micrograms/Liter. It also took soil samples, a beef tissue sample, and test ed water from the Ohio River and from public water supplies. The company says in the report that it “believes the Phase III data set” fully addresses the charge established in the MOU with EPA. That charge called for sufficiently understanding sources of PFOA releases from the site so that PFOA migr ation and exposure pathwa ys could be adequately characterized and assessed on a screening level basis. -- Suzanne Yohannan ( syohannan@iwpnews.com )

Related News: Toxics Water 2431554