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Chemours faces first Notice of Violation issued under TSCA

Organisation - US EPA - Enforcement © US EPA

The US EPA has issued its first Notice of Violation under TSCA to chemical giant Chemours, based on a variety of alleged reporting and notification failures.

Issued on 13 February, the Notice of Violation (NOV) claims that Chemours violated provisions under Section 5 and 8 of TSCA, including with regard to its use of the fluorinated compound GenX and its intermediate hexafluoropropylene oxide (HFPO).

The EPA told Chemical Watch that the NOV – a non-judicial enforcement action taken by the agency to stop or correct a behaviour – is the first it has issued for TSCA noncompliance.

The law requires companies to submit pre-manufacturing notices (PMNs) before manufacturing any new chemical substance, and significant new use notifications (Snuns) for use of a substance beyond what is permissible under a significant new use rule (Snur).

But the NOV cites several failures by the company to follow these and other requirements at two company facilities, one located in North Carolina and the other in West Virginia in 2017. These include:

  • failure to submit a Snun for emissions of HFPO, which is subject to a Snur requiring it to be used in an enclosed process, and failure to notify a customer that the substance is subject to a Snur;
  • failure to control effluent and emissions during the use of GenX as required by a 2009 TSCA Section 5(e) consent order;
  • failure to submit a PMN for a substance that was manufactured for a commercial purpose and not listed on the TSCA inventory;
  • failure to submit a Snun for a confidential substance that is subject to a Snur restricting its annual production to 10,000; and
  • failure to include three substances, and to report "significant figures of accuracy" on four chemicals, under the 2016 Chemical Data Reporting (CDR) exercise.  

When approached by Chemical Watch, the company said it "take[s] these matters very seriously."

"Based on an initial review we believe that we have already addressed many of the issues raised and have responses to address the others," said spokeswoman Lisa Randall.

‘Aggressive’ action

Bob Sussman, a former lawyer to the EPA, expressed surprise at the issuance of the NOV. He said in an interview that there are other, more informal actions the agency could take if they just want to levy fines for TSCA violations.

'It’s certainly more aggressive than anything EPA has done for a while,' said Bob Sussman, former EPA lawyer.

"Maybe this is a shift in approach for just this one company, though we don’t know that yet," Mr Sussman said. "It’s certainly more aggressive than anything EPA has done for a while."  

Following immediate action to correct the violations, the NOV has requested that Chemours submit to the EPA an outline of the actions it "has already undertaken and/or provide the time-frame for actions it will implement to come into compliance with TSCA."

The agency also reiterated an earlier request for documentation of when Chemours first learned of GenX-related contamination in and around its facilities.

The NOV says the EPA has not yet received this information, and its submission is "significant to Chemours’ compliance with substantial risk information required under TSCA Section 8(e)" – a provision of the law that requires companies to inform the agency upon learning that a substance it handles presents a "substantial risk" to the environment or human health.

No financial penalty is mentioned in the NOV, but according to Mr Sussman, NOVs are often, though not always, followed by civil or criminal action.

Criminal penalty provisions of TSCA indicate that ‘knowing or willful’ notice or reporting violations can carry a penalty of one year in prison or a fee of up to $50,000 per day of violation. 

This article was corrected on 8 March. The original article incorrectly stated that TSCA's penalty for criminal violations is a fee of up to $25,000 per day of violation and/or up to a year in prison; the correct penalty is up to $50,000 per day of violation, or a year in prison. 

GenX controversy

The EPA says a published discovery of perfluoroalkyl substances (PFASs) in North Carolina’s Cape Fear River – which the Fayetteville Works site abuts – prompted its investigation into Chemours.

And its action comes alongside state-level enforcement stemming from the company’s release of GenX into the watershed. This has resulted in a consent order requiring Chemour to pay North Carolina a penalty of $12m and to reduce its GenX emissions by 99%, in comparison with 2017 levels, by the end of this year, among others.

Chemours told Chemical Watch that it has already invested $100m in emission control technology to work toward this.

GenX – a fluorinated chemical used for nonstick and other waterproof coatings – has been the subject of widespread controversy, amid concerns that the short-chain substance carries similar health concerns as the older, long-chain PFASs, like PFOA, that it replaced.

The EPA classifies the substance as an "emerging contaminant" in need of more research. The agency has indicated that oral exposure to GenX – such as through drinking water – could impact the thyroid, reproductive organs and tissues, developing fetuses, and the kidney.

A 2017 EPA fact sheet said the agency is using data from Chemours to update its risk assessment of the chemical.

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