EPA, Chemours Reach PFAS Sampling Agreement

WEDNESDAY, JANUARY 3, 2024


The U.S. Environmental Protection Agency recently announced that chemical solutions company Chemours has agreed to perform sampling for per- and polyfluoroalkyl substances (PFAS) at its Washington Works facility in Washington, West Virginia.   

The agreement, according to the EPA’s release, states that Chemours must take samples and analyze soil, surface water, sediment, groundwater and waste streams produced by the facility to gather information on known and potential contamination.  

About the Agreement

This agreement is reportedly set under Section 3013 of the Resource Conservation and Recovery Act (RCRA) and is expected to give the agency data to help its understanding of PFAS contamination and how migration of PFAS contamination could affect communities.

The EPA states that it plans to address substantial endangerment situations from PFAS contamination under its existing enforcement authorities.

“Chemours and other PFAS manufacturers must be held accountable for contamination from forever chemicals,” said Assistant Administrator David M. Uhlmann of EPA's Office of Enforcement and Compliance Assurance. 

“EPA is working closely with Ohio and West Virginia to determine the extent of PFAS contamination from the Washington Works facility and will ensure that Chemours takes steps based on the sampling results to better protect nearby communities from forever chemicals.”

The release states that the initiative is focused on using enforcement tools to reach site characterization, control ongoing releases that pose a threat health and the environment, ensure compliance with permits and other agreements to prevent and address PFAS contamination and to address endangerment issues as they arise.

Chemours reportedly owns and operates Washington Works, a manufacturing facility on the southeast bank of the Ohio River across from the state of Ohio. Since 1951, several PFAS have been manufactured, produced, generated, or used at the facility and there have been previous PFAS releases from its operations.

Waste made by the facility containing PFAS have reportedly been thrown out in landfills managed under the West Virginia Solid Waste Management Program and the West Virginia National Pollutant Discharge Elimination System (NPDES) Stormwater Program.

“EPA’s announcement today is a crucial action towards protecting communities in West Virginia from these forever chemicals,” EPA Mid-Atlantic Administrator Adam Ortiz said. “It also builds on the work our State partners are doing to provide clean water and clean air for people across the Mountain State.”

This agreement is reportedly a part of the EPA’s Fiscal Years 2024-2027 National Enforcement Compliance Initiative on Addressing Exposure to PFAS.

Background Information

In January 2018, the North Carolina Department of Environmental Quality announced that it had been investigating GenX, a chemical used by Chemours in the manufacture of fluoropolymers including PTFE—sold by Chemours and DuPont as Teflon—after finding possible contamination around Chemours’ Fayetteville Works. GenX, an unregulated chemical, has been shown to be carcinogenic in some animals.

The investigation was launched after the Department received reports that GenX releases were contaminating the groundwater—used as a drinking-water source by some nearby residents—and the Cape Fear River. Chemours released a statement at that time asserting that it did not believe GenX was affecting the area’s drinking water, but that it would implement new practices regarding the capture and disposal of wastewater containing GenX.

By March of that year, the EPA announced that it would convene a national leadership summit to address the topic of per- and polyfluoroalkyl substances, or PFAS, used in products including paints.

In July 2019, Chemical & Engineering News reported that Chemours was suing DuPont over environmental liabilities. According to the lawsuit, DuPont grossly underestimated the environmental liabilities it saddled Chemours with when it spun off the company back in 2015.

At the center of the suit, Chemours pointed out “High End (Maximum) Realistic Exposure” figures—estimates of the liabilities DuPont transferred to Chemours, which took over DuPont businesses such as titanium dioxide and fluorochemicals.

As examples, Chemours referenced the GenX spills in Fayetteville, North Carolina. At the time, DuPont allegedly estimated the liabilities at $2 million; however, Chemours signed an agreement with the state requiring it to spend upwards of $200 million to fix the problem.

Both companies also faced lawsuits from the state of New Jersey for discharges from various plants. These liabilities were originally estimated to cost $337 million but were later revised to $620 million.

In March 2020, while the cases wound their way through the courts, the EPA proposed regulations on imported products that contain certain persistent long-chain PFAS chemicals that are used as surface coatings as part of its Per-and Polyfluoroalkyl Substances (PFAS) Action Plan.

Then, in August, Morningstar financial analyst Seth Goldstein estimated that the total PFAS legal liability for DuPont, Corteva, and Chemours combined, was about $6.5 billion. Of that, $5.2 billion is litigation and $1.3 billion is cleanup costs.

By January 2021, the companies announced that they had entered into a binding memorandum of understanding which contained a settlement to resolve the legal disputes. According to the terms of the cost sharing arrangement, with DuPont and Corteva on one side and Chemours on the other, the three have agreed to a 50-50 split of certain qualified expenses incurred over a term not to exceed 20 years or $4 billion of qualified spend and escrow contributions in the aggregate.

In June 2023, Chemours, alongside manufacturer DuPont de Nemours and agricultural chemical company Corteva, Inc., reached an agreement to resolve all per- and polyfluoroalkyl substances-related drinking water claims.

According to the release, the companies were to collectively establish and contribute a total of $1.185 billion to a settlement fund for United States water systems. The three chemical manufacturers were reportedly facing thousands of lawsuits across the country alleging that PFAS were utilized in their manufacturing processes.

Chemours, DuPont and Corteva announced the agreement to resolve PFAS-related drinking water claims. The class reportedly includes water systems with a current detection of PFAS at any level and those that are currently required to monitor for the presence of PFAS under EPA monitoring rules or other applicable laws, including but not limited to systems in the South Carolina aqueous film-forming foam multi-district litigation.

According to the release, the following systems are excluded from the settlement class:

  • Water systems owned and operated by a State or the United States government;
  • Small systems that have not detected the presence of PFAS and are not currently required to monitor for it under federal or state requirements; and
  • Water systems in the lower Cape Fear River Basin of North Carolina (which are included only if they so request).

Previous PFAS Testing

In August 2023, the EPA issued its third Toxic Substances Control Act test order, requiring testing on per- and polyfluoroalkyl substances under the National PFAS Testing Strategy.

In the National Testing Strategy, the EPA assigned different PFAS into smaller categories based on similarities in structure, physical-chemical properties and existing toxicity data. The EPA then issued test orders for PFAS in specific categories that lack toxicity data to inform the agency’s understanding of the potential human health effects. 

The first test order was for 6:2 fluorotelomer sulfonamide betaine, a PFAS used in commercial firefighting foam. The second was for HFPO, a PFAS used to manufacture plastics.

The EPA’s action ordered the Chemours Company, du Pont de Nemours and Company and 3M Company to conduct and submit testing on 2,3,3,3-Tetrafluoro-2-(heptafluoropropoxy)propanoyl fluoride (HFPO-DAF).

The chemical is a substance used as a reactant in organic chemical manufacturing. HFPO-DAF is known to be used to make the chemical Hexafluoropropylene Oxide (HFPO) Dimer Acid (CASRN 13252-13-6), also known by the trade name GenX.

Additionally, HFPO-DA is used in the production of nonstick coatings, stain repellent and other consumer and industrial products and was widely used to replace PFOA. More than 1 million pounds of HFPO-DAF are manufactured each year, according to TSCA Chemical Data Reporting rule reports.

According to the release, after examining existing hazard and exposure data, the EPA concluded that HFPO-DAF may present an unreasonable risk of injury to health or the environment. The potential hazards from exposure to this chemical could reportedly include organ damage, including to the eyes and skin, as well as cancer. The EPA also found that workers may be exposed to HFPO-DAF.

The companies subject to the test order could have reportedly conducted the tests as described in the order, including testing of physical-chemical properties and health effects following inhalation, or provided the EPA with existing information they believed EPA did not identify in its search, but which satisfies the order requirements. 

The order employed a tiered testing process, as TSCA requires. The results of all the first-tier testing were required to be submitted to EPA within 446 days of the effective date of the order and were to inform the decision as to which additional tests are necessary.

   

Tagged categories: Chemours; Construction chemicals; Environmental Control; Environmental Controls; Environmental Protection; Environmental Protection Agency (EPA); EPA; Government; hazardous materials; Health & Safety; Health and safety; NA; non-potable water; North America; potable water; Program/Project Management; Quality control; Regulations; Safety; Testing + Evaluation; Water/Wastewater

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