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As EWG Posts Damning New DuPont Documents, EPA Readies 'Formal Action'

As EWG Posts Damning New DuPont Documents, EPA Readies 'Formal Action'

Thursday, October 25, 2007

"Noose tightening on my favorite case... that would be the...material 3M sells us (Teflon ingredient PFOA) that we poop to the river and into drinking water along the Ohio river." (Parenthesis added)

— Bernard Reilly, DuPont Lawyer
in an April, 2001 e-mail

Summary

Environmental Protection Agency (EPA) Administrator Mike Leavitt is poised to decide the fate of two landmark enforcement actions against DuPont Corporation regarding a toxic ingredient used to make Teflon and related products. EPA is wrapping up its investigation into the company's 17-year suppression of birth defect studies at its Parkersburg, West Virginia plant and drinking water contamination in two neighboring communities.

Under section 8(e) of the Toxic Substances Control Act (TSCA), companies must disclose such information to the government or pay a fine of up to $25,000 per day for each infraction. EPA's final action, or failure to act, will send a strong signal as to how the agency intends to enforce the law against major toxic chemical polluters.

WHAT THE LAW REQUIRES

Section 8(e) of TSCA requires "Any person who manufactures, processes, or distributes in commerce a chemical substance" to report to the EPA " ...any information that reasonably supports the conclusion that the substance or mixture presents a substantial risk of injury to health or the environment.:" Substantial risk of injury is defined by regulation as "Any instance of cancer or birth defects..." or "Widespread and previously unsuspected distribution in environmental media..." Fines for failure to comply can be as large as $25,000 a day for each infraction.

TSCA 8e Requirements

The EPA decision will have far-reaching effects because the Teflon ingredient is part of a widely-used chemical family that never breaks down in the environment and binds to human blood. Over 90 percent of Americans have one or more of these chemicals in their bloodstream. The health effects, as with so many industrial chemicals, have not been fully studied. However, recent industry studies show the chemical causes birth defects and cancer in laboratory animals.

In April of 2003, the Environmental Working Group submitted a formal petition to the EPA requesting enforcement action against the company for violations of section 8(e) based on DuPont's clear failure to inform the EPA from 1984 until 2001 of drinking water contamination with the key Teflon ingredient, perfluorooctanoic acid, commonly known as PFOA or C-8. EWG also charged that DuPont failed to report birth defects in the children of female workers exposed to PFOA. The petition was based almost entirely on internal company documents from DuPont.

Now, new documents divulged via litigation show that the company's behavior was worse than documented in the EWG petition, and that this behavior has not changed in any appreciable manner since that time.

DuPont officials repeatedly assured the public in 2000 and 2001 that C-8 in tap water was safe, even as their own scientists and lawyers were seriously concerned that the company lacked key studies to support the claim. It turns out these concerns were well founded. When critical studies on C-8 were completed in 2002 they showed birth defects serious enough to trigger what EPA Deputy Administrator Steve Johnson called the largest regulatory review under the Toxic Substances Control Act in the history of the EPA. This review is ongoing.

But not only did DuPont make public statements about C-8 safety that it knew were not supported by science, the company concealed information showing that tap water levels of C-8 were far higher than historic testing data had revealed. When DuPont engineers discovered in 2001 that the company's detection methods for C-8 in tap water failed to find about 80 percent of the Teflon ingredient in the water, the company withheld this critical information from local water utility officials for 3 years, and even then did not directly communicate it to them. Authorities with the Little Hocking water system in Ohio only found out about the problems with testing methods in 2004, when plaintiff's lawyers obtained the documents described and published here.

Recommendations

The documents reported here confirm an ongoing pattern of deception and intentional withholding of critical information from environmental officials and the public by the DuPont Corporation concerning important environmental and health risks from exposure to the Teflon chemical C-8. They strongly support the allegations of major violations of section 8(e) Toxic Substances Control Act made in the Environmental Working Group's April 2003 petition to the U.S. EPA.

The agency has spent 14 months reviewing our petition for enforcement action under section 8(e). We urge the agency to proceed with strong enforcement steps against DuPont for the clear violations identified in our petition.


Background

In April of 2003, Environmental Working Group (EWG) filed a petition with the U.S. EPA detailing the DuPont Corporation's failure to submit key health and environmental monitoring study results as required under section 8(e) of the Toxic Substances Control Act. At that time, EWG requested that the agency take enforcement action against DuPont for failing to report this information for 17 years and we urged the government to apply the maximum civil penalties available of $25,000 per day, per infraction.

The petition presented extensive evidence, based almost entirely on internal DuPont documents, that the company withheld knowledge of drinking water contamination with the key Teflon manufacturing ingredient, C-8, in the tap water of the Little Hocking, Ohio, and Lubeck, West Virginia, water systems from the time this contamination was first discovered in 1984, until 2001. The petition also provided detailed documentation, again based on company documents, that the company knew in 1981 (1) that pregnant women working at DuPont's Parkersburg, West Virginia plant had high levels of C-8 in their blood; (2) that animal studies suggested a link between C-8 and rare birth defects of the eye; (3) that C-8 was also present in fetal cord blood, and; (4) that two of seven pregnancies with measured C-8 in the cord blood resulted in serious birth defects of the face and eye. The company has yet to submit data on these birth defects to the EPA.

New documents obtained from DuPont in ongoing litigation show a continued pattern of withholding information from health officials and the public beginning in 2000 and extending to the present. During that time, as the contamination of local water supplies became public, the company made broad assurances of C-8 safety even as its own lawyers expressed serious concerns about the lack of science to support these claims. Later, when it became clear to DuPont scientists that C-8 levels in tap water were higher than previously thought, this information was not disclosed to government or water utility officials. As with many of the document cited previously by EWG, these papers cited here were submitted to the EPA public docket by lawyers representing citizens of Parkersburg, West Virginia in litigation against DuPont for contamination of drinking water with C-8.

Of particular interest is a series of e-mails from a DuPont lawyer, Bernard Reilly, between August, 2000 and December, 2001. These e-mails severely undermine several of DuPont's most important assertions about the safety of C-8.

In an e-mail from Reilly to six DuPont lawyers and scientists dated 8/29/2000, under the subject line "Additional Studies — Privileged Communication" Reilly discusses four different studies that "might be very important in defending C-8 litigation." These include a basic birth defects study, a worker study and a study to gain a "better understanding of the way C-8 acts on humans." Reilly is clearly worried about the lack of basic science to support the company's "best story" on C-8 safety. To quote:

"...our best story is that there have been no impacts on human health even at high levels, yet we have not done a first rate peer reviewed study in recent history on our workers and retirees..."

Exhibit A (PDF)

This lack of solid science on the safety of C-8, however, did not in any way deter the company from making public statements that C-8 in tap water was safe.

The same month that Reilly expressed his concerns about the lack of science to support safety claims for C-8, a draft letter to customers from the Lubeck Public Service District (LPSD), reviewed by and obtained from DuPont, contains the sentence, "DuPont has ample toxicological and epidemiological data to support confidence that PFOA (C-8) does not represent a human health concern." [Exhibit B (PDF)]

Just two months later, in October, 2000, the final letter was sent to customers with a similar blanket assurance from DuPont regarding the safety of C-8 in tap water.

"These levels are below the DuPont guideline and DuPont has advised the District that it is confident that these levels are safe."

Exhibit C (PDF)

But DuPont did not have the studies to prove C-8 safety. What's worse, when these studies were completed and submitted to the EPA in 2002, they showed birth defects so serious that they sparked a major EPA health review of C-8 safety that continues today. A final risk assessment of C-8 is expected from the EPA in the fall of 2004.

Not only were DuPont's own lawyers uneasy about increased pollution with C-8 and the lack of hard evidence to support claims of C-8 safety, it turns out that the methods that DuPont had supplied to local officials to detect C-8 in tap water were seriously flawed, and that levels of C-8 in the tap water were far higher than water officials knew.

In an e-mail to his son (x13316@usma.edu), Reilly recounts how on the evening of May 7, 2001, he received a call at home from engineers working for DuPont who had discovered that the company's method for detecting C-8 in water underestimated actual levels by 75 to 80 percent or more. To quote:

"We learned recently that our analytical technique has very poor recovery, often 25%, so any results we get should be multiplied by a factor of 4 or even 5. However, that has not been practice, so we have been telling the agencies results that surely are low. Not a pretty situation, especially since we have been telling the drinking water folks not to worry, results have been under a level we deem "safe" of 1 ppb. We now fear we will get data from a better technique that will exceed the number we have touted as safe. Ugh."

Exhibit D (PDF)

In May 2001, as Reilly wrote this e-mail, DuPont had not yet told communities with contaminated tap water (the Lubeck, West Virginia and Little Hocking, Ohio water systems) that they had been drinking C-8 for at least 17 years. When the company did notify water utility officials of C-8 contamination in late 2001, DuPont officials did not tell them that the actual historic levels of C-8 in their tap water were likely 4 to 5 times greater than reported.

In the fall of 2002, EPA received the C-8 birth defects study, not from DuPont, but from 3M. The study raised such serious concerns at the agency that the EPA launched a major review of the human health risks from C-8 in the spring of 2003. DuPont was well aware of the findings of the study and EPA's concerns, but still did not tell the communities with C-8 in their tap water that levels were likely 4 to 5 times higher than indicated by the data that DuPont provided to them. Officials with the Little Hocking, Ohio water utility did not find out about this discrepancy until the documents reported here were obtained by plaintiff's attorneys in 2004.


Epilogue

Reilly's e-mails provide a rare insight into the contradictions faced by chemical company employees who owe a clear loyalty to their employers, yet have very natural human concerns about the pollution that these companies cause.

In November of 2000, DuPont lawyer John Bowman, in a memo to Reilly and others observes,

"Our story is not a good one, we continue to increase our emissions into the river in spite of internal commitments to reduce or eliminate the release of this chemical...."

Exhibit E (via The Memory Hole)

In an April, 2001 e-mail to his son, Reilly comments "Noose tightening on my favorite case... that would be the...material 3M sells us (PFOA) that we poop to the river and into drinking water along the Ohio river." (Parenthesis added) [Exhibit F (PDF)]

In December, 2001 e-mail, again to his son, Reilly evoked the commonly held sentiment that is rarely expressed by industry scientists that he would not like to drink water contaminated with C-8, even at low levels.

"The good news is that levels in drinking water are lower than levels set using even the most conservative extrapolation techniques. The bad news is that it still is there and folks do not like it. I would not."

Exhibit G (PDF)

Who would.


Related Materials


List of Exhibits

Exhibit A

Exhibit B

Exhibit C

Exhibit D

Exhibit E (Via The Memory Hole)

Exhibit F

Exhibit G


TSCA 8e Requirements

15 USC 2615: Civil & criminal penalties

15 USC 2607: Reporting requirements

TSCA Section 8(e) guidance (1978)

TSCA Section 8(e) guidance (2003)


EWG's Original TSCA 8e Petition

http://www.ewg.org/node/8740