When DuPont spun off its chemicals business last year – it’s now called Chemours – what exactly did investors get? Not much so far, say market analysts, but there’s one thing Chemours investors do have: A helpful November 2015 letter covering corporate litigation FAQs about DuPont’s history with PFOA.
That history of creating products using perfluorooctanoic acid, or C8, dates back to World War II and the Manhattan Project. In the decades since, DuPont’s corporate behavior reflects an indifference to anything other than profits and stakeholders, with a world-class callousness that has finally set the chemical giant on a day-of-reckoning collision course with the consequences of its own venal choices.
The better question to ask is: When exposed to routine unsafe levels of C8, what did uninformed DuPont employees get? When the chemical leached into the groundwater, what did residents in communities and on the farms near the company’s plants in West Virginia, Delaware, New Jersey and elsewhere get? Finally, now that traces of C8 are found in nearly human alive – and in locations all over the globe – what lasting toxic legacy does all of civilization get because DuPont concealed what it knew about C8 dangers?
There’s a good chance the answer to that will be “nothing,” beyond the birth defects and cancer cases, the damage to property and livelihood and quality of life, and the overarching environmental impacts. The new DuPont incarnation that is Chemours assumes all legal liability for pending C8 judgments, and there are thousands to date. It’s a move that lawyers, journalists and environmental activists say is yet another tactic in the long-chain decision to insulate DuPont from legal accountability or financial fallout: An underfunded and bankrupt Chemours will shield the DuPont entity, leaving those it harmed empty-handed. At least one advocacy group on C8 also is challenging DuPont’s announced merger with Dow.
To understand the long chain of duplicity in DuPont’s decisions that led to here, it’s necessary to first explore the long-chain perfluorinate that a DuPont scientist named Roy Plunkett discovered in 1938. As with many discoveries, this precursor to PFOA was an accidental find in Plunkett’s New Jersey lab while experimenting with refrigerants. In this case, Teflon™, which became a registered trademark in 1945 after the nonstick coating compound was first put to military use during World War II, was a discovery that Chemours still boasts of as “an example of serendipity, a flash of genius, a lucky accident.” To be fair, PTFE and later generations of the perfluorinates helped deliver the goods on consumer convenience and seemingly, the promise that DuPont signs – visible everywhere in the corporate headquarters city of Wilmington, Delaware – had long claimed: Better Things for Better Living, Through Chemistry. That last part was dropped in 1981, the same year DuPont told female workers to leave the Teflon departments.
By then DuPont officials already knew, had in fact known for two decades, that C8 exposure carried health risks. Along the trajectory of studies, tests and the trail of internal documents that dated back to 1961, DuPont research revealed the toxicity of PFOA and the potential for harm to pregnant women and birth defects in their children. In one comprehensive report, released in 2015 by Environmental Working Group, the timeline of DuPont’s own research with C8 testifies against the firm’s subsequent disregard:
- 1973. DuPont finds there is no safe level of exposure to PFOA in animals.
- 1976. PFOA manufacturer 3M tests its workers, and finds C8 in nearly every blood sample.
- 1981. The children of DuPont workers are born with defects. Birth defects are also found in rats studied by the 3M Company, which had already learned C8 did not break down over time.
It’s important to note that 3M manufactured the profitable Scotchgard™ product, a process that relied on PFOS, which is closely related to PFOA, or C8. That abbreviation itself is shorthand for the number of carbon atoms in its chain; the U.S. Environmental Protection Agency and other regulatory agencies have worked to reduce exposure in the entire class of PFCs, particularly among these long-chain polymers. It’s been 15 years since the EPA forced 3M to phase out its production of both PFOS and PFOA. But 3M was a DuPont supplier, so DuPont continued on by producing its own C8, a toxin now used for a half-century.
Indeed, the Teflon business continued to boom in the U.S. era of 1980s deregulation, and as the scope of multinational operations continued to expand. Emerging markets as well as those in the U.S. were well-stocked with everything from clothes and small appliances, to automotive and garden products – the windshield wipers, tennis rackets, paints, fabrics, and yes, cookware, all made with Teflon™ coatings. Today, according to the Chemours Company’s hot-off-the-press Annual Report, just 45 percent of the firm’s sales are in North America, and customers are in 130 countries. So it was a lot of PFOA to spread around the globe, considering that DuPont’s agreement with EPA kept its PFOA use legal through 2015.
But that would still be 30 years after DuPont’s secret drinking water samples at the Washington Works plant showed that toxic C8 was now in the drinking water of nearby river towns in West Virginia and Ohio. Meanwhile, DuPont officials continued to conceal the results of their escalating environmental and public health crises. Company executives in Wilmington continued to live and work in one of the most corporate-friendly cities in America, where more than a million firms are incorporated, including two-thirds of all Fortune 500 companies – meaning there are more incorporations than people in the small East Coast state. DuPont enjoys a 200-year-old legacy of power and privilege there, has long been a major employer, and it’s easy to envision a DuPont team that believed it could disregard its ethical obligations, decide that transparency or remediation were not “economically attractive,” and act with the arrogant sense of impunity and corporate brazenness that ultimately shocked attorney Rob Bilott.
Because finally, Bilott took a telephone call from a resolute West Virginia farmer named Wilbur Tennett.
Bilott wasn’t a DuPont attorney, but he was about to be made partner at a Cincinnati firm, where he normally served companies as corporate counsel with environmental litigation expertise. Tennett wasn’t an attorney at all, but he had pretty much given up on getting any local help, living in the shadow of the DuPont plant in Parkersburg. Tennett had carefully documented and videotaped what was happening on his farm, a property adjacent to the parcel his family had sold to DuPont in the 1980s. The company told Tennett no hazardous materials would affect his operations, but the truth became painfully obvious when livestock and wildlife became ill. Tennant himself died in 2009, but not before seeing vindication.
Bilott’s discovery of DuPont’s complicity was detailed in the reams of emails, reports and other internal documents he painstakingly sifted through – a process that ended in a stunning and disturbing portrait of how DuPont poisoned its own workers in West Virginia, dumped toxins into the air and water, and tainted the land with C8, which over the years they had come to learn held even worse public health consequences and environmental implications. After Bilott’s work, they could no longer deny the truth. It took years – years in which DuPont dramatically increased its C8 production – before the company agreed to settle a $343 million class-action lawsuit in 2004 filed by Bilott on behalf of 50,000 people.
What was unique about this settlement is that it required an independent scientific panel be established to further study the potential health risks for C8, and fund a medical monitoring program to test local residents. From 2005 through 2013, the panel of epidemiologists – Tony Fletcher, David Savitz, and Kyle Steenland – found probable links to kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, pregnancy-induced hypertension and diagnosed high cholesterol. All told, the groundbreaking research found probable links between C8 and 55 different diseases, published in 35 peer-reviewed publications. Interviews and samples were taken from 69,000 residents representing 80 percent of the population.
But the impacts of C8 extend far beyond the West Virginia facility where Ken Wamsley was heavily exposed to the chemical before developing ulcerative colitis and rectal cancer, and where resident Carla Bartlett was awarded $1.6 million in Fall 2015 after being diagnosed with kidney cancer. The C8 in her drinking water is both biopersistent – meaning that it stays in an environment over time without quickly breaking down – and bioacculumative, because repeated exposure to the chemical build up in the body. The risk of the latter property is increased by the molecular structure of the long-chain PFOS and PFOA.
Essentially it is plastic that won’t degrade, and now that matters virtually everywhere on earth. The EPA reports C8 findings in soil, air and water across the United States. In the Arctic, polar bears test positive for C8 stored in their livers, a sad and obviously unnatural result of a manmade chemical that didn’t exist before 1938, while the related PFOS once manufactured by 3M is a threat to fish and the food chain. More than 200 scientists from 38 countries signed the Madrid Statement, demanding that chemical companies like DuPont stop playing “toxic whack-a-mole” by exchanging toxic C8 for new fluoropoisons. With a poorly understood half-life in humans that ranges between 2 and 9 years – and that now affects nearly everyone on earth – scientists are still catching up to what the DuPont C8 case will really mean.
So far, it has meant judgments against DuPont. Back in 2005, in addition to Bilott’s class-action lawsuit, the EPA leveled a $16.5 million fine for unlawfully withholding information on the chemical’s human health risks. The fine amounted to just one day’s worth of sales in DuPont’s plastics division. Bartlett’s case was followed by that of John Wolf, who suffers from ulcerative colitis. DuPont agreed to a January 2016 settlement in his case, for an undisclosed amount. The two cases are among six test cases to be heard this year, among 3,500 individual cases that Chemours – not DuPont – faces beginning in 2017. A judge ruled against the company’s request for a new trial in Bartlett’s case, as all the cases move ahead.
Back in Parkersberg, the DuPont sign was gone by the end of 2015. In its place was a flimsy banner that marks the site of the Chemours facility where the “new” company has no plans to stop its operations, but the future of that spinoff and its solvency raises lots of questions. With significant debt, hundreds of layoffs, declining sales and the looming specter of 40 trials per year related to C8 toxicity, Chemours is on the hook for what DuPont estimates in its 10K filing as $1 billion above accrued amounts. Existing and monumental liabilities, the potential for a Moody downgrade – it’s all causing West Virginia victims, and others around the country discovering new C8 sites, to wonder about remediation and compensation.
As well they should. The Environmental Working Group notes the 2006 case of Kerr-McGee, a company that spun off its chemical business subsidiary, Tronox, just before merging with Anadarko Petroleum. Less than three years later Tronox filed for bankruptcy. The Justice Department brought fraud charges, charging that the spinoff was designed to shield the merger. In 2014 Anadarko settled for $5.15 billion, the largest environmental enforcement recovery payment the U.S. Justice Department ever obtained.
Any Chemours failure would be the final DuPont betrayal in the long-chain disaster of deception that began so long ago, with unintended consequences for so many people. But it would also be one more link in the chain of environmental crimes and the failure to protect citizens from them. The “real story here is that there’s no regulation,” said Nathaniel Rich, the New York Times author who wrote about Rob Bilott and the case in January 2016. The EPA regulates only a fraction of the tens of thousands of chemicals that companies like DuPont use. Until they do, the next case really is only a matter of time.