Document JNR7N3oO0danJB9JEDV8LgbEv

f e i 9 S ON XH/ Xl l 6 i : i l : zo / s T / e o M - Il 1% UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION III 1650 ARCH STREET PHILADELPHIA, PA 19103 REGION V 77 WEST JACKSON BOULEVARD CHICAGO, IL 60604 IN T H E M ATTER OF: E. I. du Pont de N em ours and Company, Incorporated W ashington W orks Facility Route 892 Washington, W V 26181 ORDER ON CONSENT Proceeding under section 1431(a)(1) o f the Safe Drinking W ater Act, 42 U.S.C. 300i(a)(L) Docket Nos. SDWA-08.2002-0019, SDWA-Q5-2002- CXDO jL ' Ner3a "QQ "O cn --33g o CO I\LVLIU I. STATUTORY AUTHORITY 1. This O rder on Consent ("Order") is issued pursuant to the authority vested in the Administrator of the United States Environmental Protection Agency ("EPA") by Section 1431(a)(1) of the Safe Drinking W ater Act ("SDW A"). 42 U.S.C. 300i(a)(l). 2. T he authority to issue this O rder was delegated to (the Regional Administrators by Delegation No. 9-17, dated May 11, 1994. 3. U nder the SDW A, Congress has delegated to EPA broad authority fo r the protection of public water supplies and drinking water sources. U. DEFINITIONS 4. T h e term "Underground Source of Drinking W ater" ("U SD W ") m eans an "aquifer" or its portion which supplies a public water system ("FW S") or which contains a sufficient quantity of ground water to supply a FW S and which currently supplies drinking water for hum an consumption, or contains fewer than 10,000 milligrams per liter (rngP total dissolved solids, and is not an exempted aquifer. See 40 C.F.R. 144.3. M0/S00 C O fr s Bed :990# : C H IIVNNIONIO H9S1 a n d t t t h v uosuuor M O OB? 000044 S020 T8C CTS IVJ CC:9T S0/-SI/C0 rwdse: so/si/e :pe/\xao3fci [ e S S ON T H / I l 6 T ; TT . - 2 0 / J T / E 0 m . FINDINGS OF FACT AND CONCLUSIONS OF LAW 5. E. I. du Pont de Nemours and Company, Incorporated ("DuPont"), is a corporation and is therefore a "person" within the meaning of Section 1401(12) of the SDW/A, 42 U-S.C. 3001(12). 6. D uP ont owns and operates a manufacturing- facility, known as the W ashington W orks ("Facility"), located in Washington, W o o d County, W est Virginia. 7. Am m onium perfluorooctanoate, CAS N um ber 3825-26-1 (hereafter "C-8"), is a periluorinaled surfactant that D uPonl has used in its fluoropolymcr-related manufacturing processes at the Facility since the early 1950s. 8. Residues containing C-8 generated by the Facility are o r have been released to the air, discharged to the Ohio River, disposed of at the Facility, Dry Run and Letart landfills in West. Virginia ("disposal sites") and otherwise shipped off-site for destruction and/or disposal including into uolined landfills. 9. Studies perform ed by D uPont and Minnesota Manufacturing and M ining Corporation (a manufacturer o f C-8) ("3M") have determined that C-8 in sufficient doses, i.e., considering both am ount and duration of exposure, is toxic to animals through ingestion, inhalation and dermal contact Studies have also found that C-8 is persistent in humans and the environm ent EFA is conducting a preliminary hazard assessment o f C-8 under the Toxic Substances Control Act ("T SC A "). 10. Recently, C-8 has been detected in the underground source of drinking water used to supply the following locations, at the following levels : Lubeck, W V, PSD: 0.8 micrograms/liter (ug/l) U,Lquarter 2000) Facility Production Wells: 1.99 ug/l (Well 336, 1998) 1.45 ug/1 (Well 332. 1999) Facility Drinking W ater Taps: 0.213 ugO. (Building .5, 1999) 0.496 ug/l (Building 293,1999) 0.306 ug/l (Building 231, 1999) 0.135 u g l (Building 363, 2000) Little Hocking, O H , PWS: 1.840 ug/l (Well 1,12/01) 3.730 ug/l (Well 2, 12/01) 0.855 ug/l (Well 3,12/01) 7.690 uga (Well 5, 12/01) 1.720 ug/l (Well 1,1/02) 2.970 ug/l (Well 2,1/02) 0.744 ug/l (Well 3.1/02) 000045 2 no/900 g 8 6 0 d 9B6# I Cft liVNNIDNID ITESI Olid TTTH V uosuuor S0J0 T8C CTS XVd CC-9T ZOAST/CO !WdS E * ZO/Sl/C : paat008H ( EiSS ON Xil/XX) 6 i : T I JL ZO/ZT/CO 6.220 ug/1 (W dl 5, 1/02) 11. Although recent sampling shows lower levels, groundwater data from Letart landfill has shown C-8 concentrations as high as: On-site monitoring wdl MW1 On-site monitoring well MW -2A 24,000 ug/1 (1998) 990 ug/1 (1998) Private wells near the Letart landfill when tested for C-8 in 2001 showed levels of 0.42 ug/\, 0.296 ug/1, and 0.085 ug/U tap samples front the only well in the area of Letart landfill which is currently known to supply drinking water showed levels o f 0.031 ug/1, 0.046 ug/1 and 0.053 ug/1 (duplicate sample). 12. T h e C-8 discharged by the Facility is a contaminant present in or is likely to enter a PW 5 or an U SD W through the migration from air emissions, surface water discharges or from unlined landfills, and may present an imminent and substantial endangennenc at levels exceeding 14 ug/1 in water used for human consumption based on "A Hazard Narrative for Periluorooctanoate (PFOA)" a final report prepared by ENVIRON International Corporation, January 24, 2002 (hereafter "ENVIRON report") for DuPonc. 13. D uPont, the W est Virginia Department o f Environmental ProtectionC W V D EP"), and the W est Virginia D epartm ent of Health and H um an Resources ("W VDHI-IR") have entered in an agreement on consent ("W V O rder"), dated November 15, 2001, attached hereto, which provides for, inter alia, a toxicological and human health risk assessment of C-8 to be conducted under the supervision of a C-8 Assessment of Toxicity ("CAT") T eam pursuant to the W V O rder, as well as ground and surface water monitoring and plume identification. D uPont, in a letter dated February 11, 2002, attached hereto, also agreed to perform sampling o f private and public ground water wells within a 1-mile radius of the little Hocking, Ohio PW S well Geld, following rhe protocol established in the W V O rder. (Hereafter, the sampling required by the W V O rder and the additional sampling agreed to by D uPont will be referred to as "sampling in. W V /O H ,") 14. C-8 is currently not a contaminant for which a national primary drinking water regulation has been established pursuant to die SDW A, however, for the purpose o f this Order, DuPont and EPA agree to use die level of 14 ug/1 C-8, as set forth in die EN V IR O N report, as the temporary threshold level for provision of alternate water as required by paragraph 17 of this Order. IS. D uPont and EPA further agree to use the screening level for C-8 to be established by the W V O rder as the threshold level for the provision of alternate water required by paragraphs 18 through 23 o f this O rder, in lieu of the level set forth in paragraphs 12 and 14 o f this Order. 16'. EPA has consulted with the W V DEP, W V D H H R , the O hio Environmental Protection. Agency ("O EPA ") and the O hio Departm ent o f Health ("O D H ") to confirm that the information on which this O rder is based is correct and to ascertain the action that the state and local authorities are or will be taking. W V D H H R , OEPA, and O D H have requested that EPA take this action. EPA has concluded that all requisite conditions have been satisfied for EPA action under Section 1431(a)(1) o f the SDW A, 42 U.S.C. 300i(a)(l). rto/too z sued :gee# : 000046 3 C H IXVNNIDNID ffJSX S0Z0 T8C CTS XVd CC=9T ZO/ST/ olid XTTH V uosuqor -JeiuTM- ZO/Sl/E : Da at 0so H [ 9 9 ON XH/XIJ 6T : r i A1 ZO/ZT/ZO rv. ORDER ON CONSENT Pursuant to the authority issued to the EPA Administrator by Section 1431(a)(1) or the SDW A, 42 U.S.C. 300i(a)(l), and delegated to che Regional Administrators, D uP ont is ORDERED and hereby consents to the following; Provision of Alternate Drinking W ater 17. As soon as practicable, but n o t later than fifteen (15) days following receipt of validated sampling results perform ed in accordance with the W V Order for sampling in W V / OH, DuPont shall provide a temporary alternate drinking water supply for users o f any private drinking water well and FW S in W est Virginia or Ohio where such results show the level o f C-8 exceeds 14 ugd. A "temporary alternate drinking water supply* shall mean connection to a PW S, connection to a new water well, adequately treated water o r water from some other source, including bottled water or bulk water from a tank truck that meets the water quality requirements o f 40 C.F.R. 141 and has a level o f C-8 no greater than 14 ug/1; is in sufficient quantity for all reasonable domestic uses including drinking and cooking; and is provided in a m anner convenient to the users. DuPonc shall continue to provide dus temporary alternate drinking water supply until D uP ont fully implements the Alternate Drinking W ater Plan pursuant to paragraphs 18 through 23 of this Order. D uPont shall be responsible for all operation and maintenance costs o f the alternate drinking water supply. 18. As soon as practicable but not later than thirty (30) days after a determination by die Groundwater Investigation Steering Team ("GIST") established pursuant to the W V O rder that a private drinking water well or PW S in W est Virginia or Ohio contains C-8 at levels greater than Lhe screening level developed pursuant to the W V Order, DuPont shall submit to E PA for approval, and to W V D H H R , W V D E P and OEPA, as appropriate, for review, an Alternate Drinking W ater Plan which identifies all actions necessary to enable D uPont to fully comply with the requirements of p a ra g ra p h s through 23 o f this Order. T he Alternate Drinking W ater Plan shall include a schedule of implementation for such actions. 19. Tile Alternate Drinking W ater Plan shall provide that; a. D uPont shall assure the provision of an alternate supply o f drinking water to all users o f any PW S and any private drinking water well in W est Virginia o r Ohio, identified pursuant to sampling in. W V /O H , where, and for so long as, the level of C-8 exceeds the screening level developed pursuant to the W V Order. b. Such levels shall be determined by monitoring perform ed using a test procedure established by the G IST pursuant to the W V Order, Such alternate supply of drinking water is to be provided at no cost to die users of such PW S or private drinking water wells, except for usual service fees incurred by users of a FW S. c D uP ont will provide notice to all users o f such PW S and private drinking water wells o f the availability o f the alternate supply of drinking water. M0V800 4 - C M IIVNNIONIO H9S1 8 s8ed 986# ! o n d TTTH V uosunor 00<*A7 S020 T8C CIS IVi !dEE:t' 30/Sl/E ? : d a [C8S ON i r a / l ] 6 i : i l d i l l ZO/ZT/CO d. An "alternate supply of drinking water" shall m ean connection to a FWS, connection la new water well, adequately treated water or water from some other source, acceptable to EPA, that meets the water quality requirements of 40 C.F.R. 141 and has a level of C-8 no greater than the screening level established pursuant to the W V O rder, is in sufficient quantity for all reasonable domestic uses including drinking and cooking; and is provided in a manner convenient to the users. D uPont shall be responsible for all operation and maintenance costs of the alternate supply o f drinking water for the duration of operation pursuant to this O rder, unless the alternate supply o f drinking water is provided by connection to a FW S. 20. Following the initial submittal of the Alternate Drinking W ater Plan by DuPont, if EPA, in consultation with W V D H H R , W V D EP, and OEPA, as appropriate, determines that modifications arc necessary to D uPont's Alternate Drinking W ater Plan, D uP ont shall make such modifications as EPA may speedy to satisfy the requirements of this O rder and submit a revised Alternate Drinking W ater Plan within forty-five (45) calendar days of notification by EPA. 21. Upon EPA's approval of the Alternate Drinking W ater Plan (or revised Alternate Drinking W ater Plan, as the case may be), D uPont shall implement, in accordance with the approved schedule, any and all actions necessary to comply with the requirements o f paragraphs 18-20. 22. W ithin thirty (30) calendar days of EPA's approval o f die Alternate Drinking W ater Plan (or revised Alternate Drinking W ater Plan, as the case may be), and quarterly thereafter, D uPont shall submit to EPA, W V D H H R , W V DEP, and OEPA, written reports summarizing all actions taken in accordance with this O rd er ("progress reports*). D uPont shall continue to submit progress reports until such time as EPA provides written notice that the reports are no longer necessary, or this O rder is terminated. All progress reports required by this paragraph shall contain the following certification, which shall be signed by a responsible corporate officer: I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based on my inquiry of the person o r persona who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility o f fines and im prisonment for knowing violations. For purposes o f this O rder, a responsible corporate officer shall be (i) a president, secretary, treasurer, or vice-president of D uPont in charge of a principal business function, o r any other person who perform s .similar policy* o r decision-making functions for D uPont, o r (ii) (he manager of the Facility, if the Facility employs m ore than 250 persons or has gross annual sales or rt0/600 5 - CtT IJ,VNNI0Nl3~ff85I S Bed 986# ! Olid TTTH V UOSUMOP 000048 575" f8C fcts IVi tC :9T Z0/T/ !HdEE:t7 O/SI/E : pa/vr aoa h U i f l S ON XU/XX] ST : I t ZO/ZT/EO expenditures exceeding $25 million (in second quarter 1980 dollars), if authority to sign documents has been delegated to the manager in accordance with corporate procedures. 23. All submittals, including reports, required under this O rder shall be submitted to the following addressees: As to EPA: Roger Reinhart (3WP32) U .S.EPA Region III 1650 Arch Street Philadelphia, PA 19103-2029 Kelley M oore (WG-15J) U.S. EPA Region V 77 W est Jackson Boulevard Chicago, IL 60604 As to W V D H H R : Victor Wilford Division of Environmental Engineering Office of Environmental Health Services Department of Health and Human Resources 815 Quarrier Street, Suite 418 Charleston, W V 25301 As to W VDEP: David Watkins Ground W ater Protection Section Division of W ater Resources W est Virginia Department of Environmental Protection 1201 Greenbrier Street Charleston W V 25301 As to OEPA; Michael Baker Division o f Drinking &. Ground W aters Ohio Environmental Protection Agency 122 South Front Street Columbus, O H 43215 MO'/OTO 000049 6 - Et! I1VNNI0NID H'JSX SJ0 t8C CIS XVd SC=9T Z0/-ST/C0 Ol e B t d 988# i o n d TI TH u o e u M o r J J UTM<- ' W d t r e : Z O / S U E ipaATaoeb reBS Otf XH/XXl 61 =11 - J 1 zo/zi/zo V. GENERAL PROVISIONS 24. D uPont admits the. jurisdictional allegations set forth herein and waives any defenses it might have as to jurisdiction and venue and agrees n o t to contest any of the findings of fact or conclusions of law herein in any action to enforce this Order. Except as to any proceeding brought by EPA to enforce this Order, in agreeing to this O rder DuPont makes no admission of fact o r law and reserves all rights and defenses available regarding liability o r responsibility in any other legal proceeding related to the subject matter o f this Order. 25. This O rder shall apply to and be binding upon D uPont and its agents, successors, and assigns. 26. This O rder may be modified only upon written consent o f all parties. 27. Nothing in this O rder shall be construed as prohibiting, altering o r in any way eliminating the ability of EPA to seek any other remedies or sanctions available by virtue of D uPont's violations of this O rder or o f the statutes and regulations upon which this O rder is based or for D uPont's violation of any applicable provision o f law. 28. This O rder shall not relieve D uPont o f its obligation to comply with all applicable provisions o f federal, state or local law, n or shall it be construed to be a ruling on. o r determination of, any issue related to any federal, state or local p erm it 29. Nothing in this O rder is intended to n or shall be construed to operate in any way to resolve any criminal liability o f D u P o n t Compliance with this O rder shall n o t b e a defense to any actions subsequently commenced for any violation of federal laws and regulations administered by EPA, and it is the responsibility of D uPont to comply with such laws and regulations. EPA reserves the right to undertake action against any person, including DuPont, in response to any condition which E PA determines may present an imminent and substantial endangerment to the public health, public welfare or the environment. 30. T h e undersigned representative o f DuPont, certifies that he is fully authorized by D uPont to enter into the terms and conditions of this O rder and to execute and legally bind that party to it 31. Pursuant to Section 1431(b) of the SDW A, 42 U.S.C. 300i(b), violation of any cerm of this O rder, or failure or refusal to comply with this Order, may subject D uPont to a civil penalty o f up to $ 15,000 per day per violation for each such day in which a violation occurs o r failure to comply contines, as assessed by an. appropriate United States District Court. 32. W h en D uPont knows or should have known, by the exercise of due diligence, of an event that might delay completion o f any requirem ent o f this Order, D uPont shall provide notice to EPA, in writing, within ten (10) business days after D uPont first knew, or in the exercise o f due diligence, should have known, o f such event T he notice shall describe in detail the basis tor the delay, including whether it is a Force Majcure event, and describe die length of, precise cause (s) of, and measures to be taken to prevent or minimize such delay. If EPA agrees that such event constitutes Force Majcure, EPA shall extend the time for performance of such requirem ent, in nO/ITO I. L 9f l *d 9 0 8 # *. 7 C H IIVMNIDNID H*SX O l i d TTTH V u o u q o r 000050 S0Z0 T8C CTS XVi SC =91 Z0/.ST/C0 Wdt'E' -V Z O / S l / E :pM 9oeu (88 ON XN/XIJ AT:fl JL ZO/Zl/ZO 0 3 - 1 1-lflOZ tl3:04pa Frew-312 188-8171 US EPAA D r i n k jin i tTfatai r O i v. +312 H E 6171 AA-04'2002 IS :13 304 863 2735 ?LANT STA?? CONFIDENTIAL T-634 P.008/01J f-448 102b writing, to compensate lo r the delay caused by the Force Majeure event D uPont's failure to notify CPA in accordance with this paragraph shall render this paragraph void and o f no effect. For purposes of this O rder, Force Majeure is defined as an erect arising from the causes beyond the wuuixuL of D uPont, and any entity controlled by D u P o n t which delays or prevents the performance o f any obligation u n d o iliis Order, Unanriripated o r increased casts o r expenses asaodnPed with the im plem ented! o f this O rder and cbawgeU. Gjiaudal drcum stanccs, failure to apply for a recpiired perm it o r approval o r to provide in a timely crueuue' all iuform anon to obniri a permit or approval or no obtain o r approve contracts, shall not, in any event, constitute Foit-e Nfajeiirr. events. D u P o n t reserves what ever rights it may lucre to dispose EPA's determination chat a particular event does n o t ran .slimfr Force Majeure in any action to enfo rce dus O rder. 33. This O rd er shall be effective upon execution, by all parties. This O rd er shall remain in. effect until D uPont fulfills its obligations pursuant to paragraphs 17 through 23 herein, submits a written request to EFA oo term b a te this Order, and EPA approves such tenaination request. 34. This Consent O rder may be executed in any cum ber o f counterpart originals. each of winch shall be deem ed to constitute an original ajpeement. and all o f which shall constitute one agreement. T h e execution of one counterpart by any party shall have die same force and effect as if chaxparry had signed all other counterparts. 33. Ail o f th e iczm s an d conditions o f this O rd e r together com prise o n e agreem ent, and. each o f th e term s a n d conditions is in coosidei aiiuu dT all vf (he ulluer Uaxos a n d co nditions. In the event that this O rd er, o r o ne o r m o re o f its ta ro s an d conditions, is held in valid, oi inuuL executed by all o f d ie agnaJtories in. identical form , o r is n o t approved in such id en tical form by th e Regional A dm inistrators, liv m tb c en tire O rd e r shall be m ill and void. SO ORDERED.- DonaldS. W elsh Regional Administrator U.S. E nvironm ental P ro tectio n A gency. R egion ILL Date: T hom as V. Skinner Fegioeal A dm inistrator ILS. FnvrmmriOTfal Proivxfirm Agency, R egina V MO7ZTO0 Z I e6>d : 986# i S 000051 C M IXVMNIDMID M S X SOZO I8C CIS ZVi SC :91 S0/-3T/C0 OTId TTTH V uosuuop j u t m <- 20/St/G :P9 AT3 3 0 H [ C : 8 S OM x a / l l l 5 T : T 1 - t l Z 0 / Z T / 9 0 writing, to compensate for the delay caused by the Farce Majcurc event D uPont's failure to notify EPA in accordance with this paragraph shall render this paragraph void and o f no effect For purposes o f this O rder. Farce Mxjeure is defined as an event arising from the cau ses beyond the control of DuPont, and any entity controlled by D u P o n t which delays or prevents the performance of any obligation under this Order. Unanticipated o r increased costs or expenses associated with the implementation of this O rder and changed financial circumstance;, failure to apply for a required perm it or approval or to provide in a timely m anner all inform anon to obtain a permit or approval or to obtain or approve contracts, shall not, in any event, constitute Force Majeure events. D uP ont reserves what ever right it may have to dispute EPA's determination rhat a particular event does not constitute Force Majeure in any action to-enforce this Order. 33. This O rder shall be effective upon execution by all parties. This O rd er shall remain in effect until D uP ont fulfills its obligations pursuant to paragraphs 17 through 23 herein, submits a written request to EPA to terminate this Order, and EPA approves such termination request 34. This C onsent O rder may be executed in any num ber of counterpart originals, each of which shall be deem ed to constitute an original agreement, and all o f which shall constitute one agreem ent T h e execution of one counterpart by any party shall have the same force and effect as if chat party had signed all ocher counterparts. 35. All of the terms and conditions of this O rder together comprise one agreem ent and each of the terms and conditions is in consideration o f all of the ocher terms and conditions. In the event chat this O rder, or one o r m ore of its terms and conditions, is held invalid, or is not executed by all of the signatories in identical form, or is not approved in such identical form by the Regional Administrators, then che entire O rder shall be null and void. SO ORDERED: . Donald S. W elsh Regional Administrator U.S. Environmental Protection Agency, Region III m ? uk Date: _ _ _ _ _ _ _ _ _ __________ _________________ _ _ Thom as V. Skinner Regional Administrator U.S. Environmental Protection Agency, Region V Date: HO/CTO EL B e d - 9 B B 0 000052 8 C H IXV>iMIDNID H*SX SOZO T9C CIS XVJ 9C:9T Z0- T - CO OTld TTTH V UOSUUOP JO 1UTM< ~ !WdS!fr 20/Sl/G D8/',# w U-.8S-0N r a / X l l 6 t : I T . J , ZO/ZI/O TOi Date . f t f l A . c / 4 P Z -- Plant Manager, W ashington W orks Facility E. I. du Pont de N em ours and Company, Incorporated ------nayfejtug 000053 3 - m ijLVh^'.iiuxissr- ' yi)2.ivi' i f i T l v r V ZUA'l/fU 1M. aSed 996# ' o n d rttw v u o s u q o r j s i u t m <- :wdse =^ so/st/e : P 9 AT3 0 SH