The Problem with Corporate Fines; How Giants like DuPont Are Skirting Responsibility Over PFOAs

The shadowy events behind DuPont’s infamous PFOA contamination scandal tell a stranger-than-fiction story of poison, pollution, cover-ups, and lawsuits. Inside the corporation’s publically available internal documents lie shocking accounts of human experiments and decades of unfathomable pollution.

In recent years, DuPont has landed in hot water for improper disposal of the toxigenic chemical outside of manufacturing plants in working-class communities like Parkersburg, West Virginia.

By the mid 1990s, cattle farmer Wilbur Tennant noticed an alarming decline in the health of his cattle. Afflicted cows were aggressive, emaciated, and suffered bouts of diarrhea. As his cows began dying, Wilbur took to filming his own autopsies. On video, he pried at cows with black, abscessed teeth and swollen gallbladders¹. Wilbur tried local vets and eventually, even the state’s DEP, but alleges that both parties refused to help.

Tennant also began filming the suspected culprit; a mysterious sudsy foam coursing through the streams of Dry Run Creek, which ran through a portion of his property.

We know now that the sudsy chemical on video was PFOA. PFOA, or perfluorooctanoic acid belongs to a class of synthetic chemicals called PFASs, per and poly-fluoroalkyl substances. The alkyl part refers to carbon and hydrogen atoms arranged in a chain. In Poly fluoroalkyl substances, the hydrogen atom in the alkyl chain is partially substituted for fluorine. Per fluoroalkyl means the hydrogen atom is completely substituted. PFOA is an 8 carbon chain compound where hydrogen atom has been completely substituted².

Other PFASs can eventually break down into PFOA but it is an otherwise non-degradable pollutant. It persists in our environment and within our bodies indefinitely. It’s hydrolysis (water) and photolysis (light) resistant. Aside from direct exposure, PFOA can be released into air, water, or soil.

Du Pont DeNemours and Company bought a 66-acre portion of land from the Tennant Family cattle farm 13 years earlier to operate as a landfill, where they began their own PFOA dumping operation.

Their release of PFOA into the environment contaminated the groundwater, and residents were becoming sick.

DuPont chose PFOA, or C-8, for their chemical product, Teflon, because the synthetic carbon-fluoride chain creates an extremely durable bond. PFOA acts as a surfactant, which repels oil and water by weakening surface tension; the process where liquid molecules attract to one another to form bonds that support less-dense objects at the surface (this can be thought of as a supportive film).

Surfactants, like PFOA, break apart the molecular accumulation of water droplets and then scatter supported materials resting at the surface. This can cause water, grease, and debris to simply slide off. After its discovery in 1947, the stable chemical found its way into endless applications, including electronics, medical devices, carpet, food packaging, and fire fighting foam.

In his search for answers, Wilbur Tennant eventually received a lucky break. His acquaintance, Alma White, was a lifelong resident of Parkersburg with an influential grandson in Cincinnati.

That grandson was adept chemical defense attorney, Rob Billot. Rob was used to defending companies from lawsuits- including DuPont but switched sides after being introduced to the case through Alma.Billot paid an obligatory visit to the Tennant property to take a look at the farmer’s ghastly tapes. Those tapes were incriminating enough to convince Billot he had a case.

Billot started by filing suit against DuPont through his existing firm, Taft, Stettinius, and Hollister. He used a court order to formally request all of their internal documents. DuPont released over 110,000 documents for Billot to sift through. Few could predict the horrors inside.

The internal documents revealed that DuPont set up their own experiments on dogs, rats, rabbits, and even humans³. DuPont studied C-8 chemicals since the 1950s and received memos from the PFOA supplier, 3M, that exposed rat fetuses experienced eye scarring and other birth defects⁴. Internal memos also cite concerns over pregnant employees⁵.

The executives at DuPont even gave worker volunteers, who weren’t fully aware of the dangers, cigarettes laced with the toxic chemical and then kept tabs on them as they developed, “polymer fume fever”⁶.

DuPont conducted a blood sampling study on pregnant employees who worked with PFOA in 1981 after one-quarter of women at the Washington Works plant gave birth to children with birth defects. The study was mysteriously abandoned, and DuPont never alerted environmental agencies⁷.

DuPont established their own guidelines on exposure limits and deliberately sequestered the findings. Company executives then secretly exposed plant workers to well over those internal limits.

DuPont, by far the largest PFOA polluter by volume, disposed of massive quantities of PFOA in barrels set out to sea³, before resorting to landfills, like Dry Run Creek. It is believed that over seven- thousand tons are thought to have been dumped at Dry Run Creek alone. Thousands of pounds of chemicals were also released through smokestacks and into rivers, like the Ohio.

Wilbur and Sandra Tennant may have been pariahs in Parkersburg, when they filed suit against the revered company in 1999, but they would not be the last family to do so. With Billot’s help, they settled for an undisclosed sum by 2001⁸.

After uncovering the scale and toxicity involved in DuPont’s contamination, Billot took a long shot by writing the EPA. He sent a 927-page brief to the agency in 2001, urging them to investigate. The EPA responded by claiming they would “phase out” PFOA through the PFOA Voluntary Stewardship Program.

From the 1950s and into the early 2000s the EPA was not setting regulations on PFAS chemicals. However, businesses including DuPont and 3M were knowingly poisoning the public.

In 2004, the agency’s position began to change. The EPA sued DuPont for not disclosing their findings on PFOA and ordered the corporation to pay $16.5 million in fines and clean up the contamination site. While this was groundbreaking at the time, the company’s 4th quarter net income in 2004 was $278 Million⁹.

The EPA also opted to conduct a study in 2005 as part of the lawsuit settlement. The agency established an independent C-8 science panel, where each side (Billot and DuPont) agreed upon three recognized epidemiologists as panelists to look at all the data available. This included samples taken from the West Virginia contamination site.

Billot and his team used their research funds to incentivize members of the affected community to provide blood samples for study. Each member of the community that provided a blood sample was given $400. In total, roughly 69,000 samples were collected for biomonitoring.

These results¹⁰ came out in 2012 and concluded that exposure to PFOA in humans was strongly linked to thyroid disease, pregnancy-induced hypertension and preeclampsia, testicular cancer, kidney cancer, ulcerative colitis (which can lead to rectal cancer), and high cholesterol. The study was not only a direct look at those impacted by the compound, but remains one of the largest epidemiological studies in US history.

The EPA’s initial response following these results was to express a need for more long-term tests on PFOA, which continue to this day. While no one would call these tests unnecessary, the scale of the Parkersburg study and staggering results give reason to enough people for more action to rid the PFAS compounds from consumer products entirely.

The C-8 panel findings did give Billot the grounds to pursue a class action suit representing the 69,000 people tested near Washington Works. After years of dedicated research, in 2017, Bilott won a $671 million settlement on behalf of more than 3,500 plaintiffs who contracted illnesses, including kidney cancer and testicular cancer¹¹.

3M, facing a similar situation from the PFOS in their Scotchgard tape, recently settled a PFAS pollution claim made by the state of Minnesota for $850 million¹².

According to Brian Peterson over at the Star Tribune, the money provided to the state of Minnesota will be used to clean up contaminated water in the Twin Cities communities that were affected by the perfluorinated chemicals (PFCs) used in consumer products, including Scotchgard that were dumped for years at four sites in Washington County¹³. As of February 2020, 3M is facing almost 200 lawsuits for their use of PFOA.

In light of growing public awareness regarding the pervasive contamination and health risks associated with PFASs, several chemical manufacturers did end up voluntarily phasing out C-8 compounds at the Stockholm Convention. They now instead use shorter chain fluoropolymers, like perfluorobutanoic acid (PFBA) and perfluorobutane sulfonate (PFBS). C-4 chained PFAS’s are considered by many, like researchers at Harvard University¹⁴ to be a “regrettable substitution” in that they were not studied in depth before arriving on the market.

The EPA released a toxicity fact sheet in 2019 stating short-chain technology like “Gen X”, or high-performance fluoropolymers, used in non-stick coatings, are toxic in animals¹⁸. Gen X exposure has a probable link to blood and immune system damage, and the data is suggestive of cancer. PFBS has been linked to serious kidney, thyroid, and reproductive system damage. In this same fact sheet, the EPA expresses no plans to regulate these chemicals in any way.

In 2016, the EPA issued a health advisory on PFOA and PFOS, mentioning that combined concentrations under 70 parts per trillion are safe. The advisory was accompanied by a myriad supporting documents, covering known health effects¹⁶. However, an 852-page toxicology report in 2018, released by the Agency for Toxic Substances and Disease Registry (ATSDR), found that fluorinated chemicals can endanger human health at levels 7 to 10 times lower than that estimate¹⁷.

State groundwater guidelines vary wildly across the U.S. For example, North Carolina’s standard safety standard of 2 mg/l is 100 times higher than Vermont’s .02 milligrams.

There are thousands of PFAS’s available in the global market. “Fluorine Detectives”¹⁸, or groups of scientists are using government funding to identify new trade-secret fluorochemicals all the time. Of course, the concern here is that as soon as a chemical is phased out, another may find its way back into commerce.

In recent years, PFOA is also gaining attention from advocacy groups. The Environmental Working Group, a nonprofit, and North Eastern University teamed up to produce an interactive PFAS map with EPA-tested water supply results from across the country.

The use of PFOA- alongside thousands of other toxic chemicals in consumer products has galvanized coalitions of parents, medical experts, and even celebrities eager to see change. An exemplary event in this space includes a “stroller brigade” held on the US Capitol Lawn by the Safer Chemicals Healthy Families organization. Protesters at the demonstration demanded the removal of hazardous chemicals from the market, especially for the sake of vulnerable populations. These days the group is targeting Mcdonald’s for their use of PFOA in Big Mac boxes and other food packaging.

Long-standing efforts from groups like Safer Chemicals Healthy Families paid off somewhat in June 2016, with the passage of Frank R. Lautenberg Chemical Safety for the 21st Century Act¹⁹ ²⁰.

The act is an amendment to the Toxic Substance Control Act, which now requires the EPA to evaluate existing chemicals on the US market with clear and enforceable deadlines. Under the passage of the act, the EPA was tasked with completing safety reviews on 10 high-risk chemicals and finding 20 more chemicals to review within 3.5 years of enactment.

Until 2016, the Toxic Substances Control Act hadn’t been updated since its introduction in 1976 and only ever banned nine chemicals²¹. Some of the more known of these are chemicals in old aerosol cans and Chromium 6; the chemical from Erin Brockovich.

That list came out on December 30th, 2019²². For every safety review completed under the act, the EPA must designate at least one more chemical as either high or low, until they assign a status to every chemical in commerce.

A newer act called the PFAS action act of 2019 passed the house in congress but has not been called to vote in the senate. The act would require that the EPA list per and polyfluoroalkyl substances as hazardous substances under the Superfund Act.

Once a contaminant is listed as hazardous under the SuperFund Act, the EPA negotiates with or orders the responsible party to conduct a cleanup, or to hire another party to clean up the site. A large fund is also set aside for clean-ups if no responsible party can be found. The EPA works with the Department of Justice on these cases to be sure offenders follow through on agreements. The PFAS Action Act would also require that the EPA conduct further testing on PFOA and PFOS in water supplies, including testing at least 25 percent in disadvantaged communities.

But if you expect a giant conglomerate like DuPont to address environmental liability head-on, think again. Holding DuPont liable for cleanups has been complicated by the establishment of spin-off companies.

A spin-off company is considered a completely independent company that’s created when the existing company sells a portion of its shares. An NBC article from Gretchen Morgenson reported on 2 spin-offs within DuPont, burdened with environmental liability; Chemours Company and Corteva²³.

DuPont was able to place the majority of liability for PFAS production with Chemours and some legacy liability with Corteva. The problem here is that these subsidiaries have substantially less money to pay for expensive toxic cleanups.

Chemours actually tried to sue its parent company, DuPont for severely underplaying their environmental risks at the time of signing.

That case was dismissed back in May, and the dismissal was upheld by Delaware Supreme Court this month²⁴. Chemours conceded that their executive did sign the spin-off and separation agreement, which states that all disputes were subject to arbitration. That means they’re settled privately, out of court, by a third party.

A Chemours attorney reportedly told the judge that they’re facing over $200 million in costs to address environmental issues at a North Carolina manufacturing facility, 100 times more than DuPont’s estimated $2 million maximum liability²³.

NBC tried to get in touch with the lawyers over at DowDuPont to ask them whether DowDupont would pay for a cleanup if neither of the spinoff companies were able. DowDuPont allegedly refused to comment.

Another battle happening right now is the remediation of a dumping ground at Dupont’s now abandoned, Chambers Works plant in southern New Jersey. A lawsuit was filed accusing DuPont of failing to alert the public of PFOAs recognized toxicity since the 1960s. And another lawsuit has been filed by the township of Carneys Point against the New Jersey DEP for failing to include residents in remediation discussions²⁵.

The Chambers Works plant has its own rich history as a Manhattan Project site and the NJDEP found over 75 dangerous chemicals above groundwater standards. Sadly, the DEP has its own history of giving DuPont exemptions on usual limits.

Today, DuPont is part of a broader umbrella conglomerate, turning out chemical products in everyday items. They merged with Dow in 2017 to create another company called DowDuPont. DowDuPont will reportedly specialize in commodity chemicals while DuPont will make special, “advanced” chemicals²⁶. The company bought Danisco in 2011, a company that produces food preservative enzymes.

No matter how removed the “new DuPont” becomes from generations of its victims, its legacy remains. Dupont has left a long trail of disgruntled, sick employees in their wake and will undoubtedly have to answer for exposing the public to PFOA in the years to come.

Afterward:

My first introduction to DuPont’s PFOA contamination scandal was as a wide-eyed intern at the New Jersey Department of Health Environmental Lab in Ewing. Biomonitoring projects, where public blood and urine samples are tested for various hazardous substances are a sobering reality in the age of Big Chemical. Everyday items may be laced with toxic compounds, once thought of as “miracle chemicals” from Big Mac boxes to skillets to cosmetics.

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