On February 14, 2019, EPA sent a Notice of Violation (NOV) to Chemours identifying TSCA violations at the company’s Fayetteville Works facility in Fayetteville, NC and at the company’s Washington Works facility near Parkersburg, WV. The NOV identifies a number of section 5 violations, including a violation of the TSCA Section 5(e) Consent Order for the manufacture of GenX, a perfluorinated chemical. The violations include:
- Failure to submit a SNUN for a CBI substance subject to a SNUR restricting its annual production to 10,000 pounds.
- Failure to submit a PMN for one chemical substance that was manufactured for a commercial purpose and not listed on the TSCA inventory.
- Failure to submit a SNUN for hexafluoropropylene oxide (HFPO). (HFPO is manufactured at the Fayetteville facility to be used as part of the manufacture of other perfluoroalkyl substances (PFAS).)
- Failure to properly control the effluent and emissions during the use of GenX as required by a 2009 TSCA Section 5(e) Consent Order. (Among other things, the Consent Order states that Chemours “shall recover and capture (destroy) or recycle” GenX chemical substances “at an overall efficiency of 99% from all the effluent process streams and the air emissions (point sources and fugitive).”)
Chemours was also cited for CDR violations.
The NOV references the July 31, 2018 Compliance Monitoring Inspection Report for Washington Works Facility and the April 24, 2018 Compliance Monitoring Inspection Report for Fayetteville Facility. Those reports explain that EPA became aware of community concerns about the alleged release of potentially harmful chemicals into the Cape Fear River by Chemours’ Fayetteville Works Facility in June 2017. The Agency inspected the Fayetteville facility later that month. The Washington Works facility was inspected as a follow up in October 2017. Both reports discuss the Consent Order. In the Consent Order EPA expressed concerns that the GenX substances (perfluorinated alphatic carboxylic acid and perfluorinated alphatic carboxylic acid, ammonium salt) would persist in the environment, could bioaccumulate, and be toxic (“PBT”) to people, wild mammals and birds.
The Agency’s concerns were based both on data on the GenX substances and on their similarity to perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”). In addition to discharge restrictions, the Consent Order imposed significant worker personnel protective equipment requirements, including that workers who may be exposed via inhalation must wear respirators with a NIOSH Assigned Protection Factor of 3000, and that Chemours must distribute the substances to only those customers that agree to require those respirators. The Consent Order also limited the levels of the GenX substances as residuals in polymers to below 200 ppb.
The NOV noted that EPA continues to investigate and review information concerning the compliance status of these facilities. It reminded the company that the Agency had requested information from Chemours, that it had not yet received, documenting when the company first learned about the GenX-related contamination around the facilities, including GenX contamination in drinking water. The NOV also reminded the company that submission of that information is significant to Chemours’ compliance with the reporting requirements under TSCA Section 8(e) regarding substantial risk information. EPA asked the company to, within 30 days, submit an outline of its action plan and time-frame for coming into compliance with TSCA.