ILMA Compoundings - May 2019 - 44

WASHINGTON LANDSCAPE

Chemours Receives First
NOV Under New TSCA
By Matthew Levetown

T

he Chemours Co. is the first
company to be issued a Notice
of Violation (NOV) for noncompliance under the Toxic Substances
Control Act (TSCA). An NOV is a
non-judicial enforcement action taken
by the EPA to either stop or correct
behavior - in this case, the release of
GenX and its intermediate Hexafluoropropylene (HFPO).1 GenX is intended
as a replacement for per- and polyfluoroalkyl substances (PFAS).2
The Environmental Protection
Agency (EPA) is examining GenX,
which is the subject of increasing
controversy, over concerns that the
substance has similar health concerns
as the PFAS it replaces.

with statutes or administrative orders,
or request cleanup of polluted sites.
Upon a finding that a person "knowingly or willfully" violated TSCA,
criminal penalties may include up
to one year in prison and/or up to
$50,000 for each day the violation
continues. EPA refers criminal matters
to the Department of Justice.

NOTICES OF VIOLATIONS
IN GENERAL
NOVs are considered more aggressive
agency actions given the existence
of informal enforcement tools such
as warning letters. Often, warning
letters are sent to a facility first, giving
the company a chance to correct the
specific violations and avoid formal
enforcement actions.
By contrast, NOVs require a facility
to submit the information on violations and to comply with regulations in
a short period of time, or risk further
enforcement proceedings. The information allows EPA to determine if there
was a violation and whether to seek
further enforcement and civil penalties.
Relying on data about NOVs issued
under other statutes, civil or criminal
legal actions often follow. Civil actions
typically seek to force compliance

CHEMOURS' NOTICE OF
VIOLATION
EPA alleges in the NOV that Chemours violated TSCA at its facilities
in Fayetteville, North Carolina, and
at Washington Works, West Virginia.
Specifically, EPA alleges that Chemours
failed to abide by Pre-Manufacture
Notice (PMN) requirements; violated
Significant New Use Rules (SNURs)
after failing to submit Significant New
Use Notices (SNUNs); failed to control
the release of GenX; and did not report
on its HFPO and GenX production.
Although much of the NOV is
redacted because it contains confidential business information, it is clear
that EPA is not only interested in
TSCA chemicals emissions. Instead,
many of Chemours' citations involve
failure to properly notify both the
EPA of new uses and customers that

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MAY 2019

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The Environmental Protection Agency
(EPA) is examining GenX, which is the
subject of increasing controversy, over concerns
that the substance has similar health concerns as
the PFAS it replaces."
HFPO is subject to a SNUR. Failure
to report import and production
volume figures of chemicals listed in
the Chemical Data Reporting Rule to
the appropriate degree of accuracy3 is
also included.
Alongside reporting requirements,
two citations were issued by EPA for
failure to use HFPO in an enclosed
space and failure to capture and
destroy GenX from effluent streams
in violation of a prior consent order.
EPA also requested information
regarding substantial health risks of
the chemicals. While EPA has only
begun the process of regulating PFOA
and PFAS, there are calls to extend
regulations to other fluorinated
compounds, such as GenX.
The NOV requires submission of
information by Chemours within
14 days to help EPA investigate the
alleged violations, and 30 days to
submit a comprehensive plan detailing
what steps will be taken to comply
with TSCA.
FUTURE ENFORCEMENT
EPA has a history with Chemours' release
of fluorinated compounds, including
extensive litigation over its release and
risk data in the early 2000s. As a result,
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