Poisoned Legacy

Ten Years Later, Chemical Safety and Justice for DuPont’s Teflon Victims Remain Elusive

May 1, 2015

Poisoned Legacy: Holding DuPont to its Promises

Just as the phase-out of C8/PFOA did not end the global health threat from PFCs, DuPont’s $16.5 million fine and $300 million settlement did not deliver justice to the people of the mid-Ohio Valley. In many ways, it was only the beginning, and 10 years later, their fight continues.

Cleanup

In the 2005 settlement, DuPont promised to pay for cleanup or replacement of public water supplies contaminated with more than 0.05 parts per billion of PFOA. But contamination of water in the Parkersburg system, the largest in the region, was originally found to be below that threshold by a tiny amount, and DuPont moved to escape its commitment. After later tests found contamination above the threshold, Parkersburg residents filed suit to have the terms of the settlement extended to them. (Jeffersonian 2006) DuPont fought the Parkersburg residents’ claims and was able to prevail in federal court in West Virginia. The residents appealed, but in 2011 the U.S. Court of Appeals for the Fourth Circuit denied their claims. (U.S. Court of Appeals 2011)

The Little Hocking Water Association, serving a community directly across the Ohio River from DuPont’s Washington Works plant, was among the first utilities in the region to learn that its wells were contaminated with C8. In an action separate from the class-action suit, the Little Hocking utility sought to have DuPont not only clean up the water it delivers, but also the source water and the pathways the chemical traveled from the plant to the source. The utility also wanted the cleanup to cover not just C8 but other PFCs, including the next-generation alternatives, and continue in perpetuity to guard against ongoing PFC contamination of the soil and river sediment.

DuPont fought back, contending that C8 did not enter Little Hocking’s wells through the river but through smokestack emissions that seeped into the wells after rain or flooding. In March 2015, an Ohio federal court judge ruled that DuPont was liable for the utility’s claims under the Resource Conservation and Recovery Act. Damages have not been determined. (U.S. District Court 2015a)

Medical monitoring

The C8 Health Project, which gathered blood samples and information for the C8 Science Panel, gathered samples and medical histories from about 70,000 residents, far more than expected. Much credit goes to the outreach program of Brookmar Inc. of Vienna, W. Va., run by former executives of two Parkersburg hospitals. Brookmar conducted focus groups and town hall meetings, publicized the program widely in a region with no large media outlets, set up mobile testing stations and paid participants $400 apiece for their time. The program was not just a scientific success but also served to educate and unite the community. (Lyons 2007)

After the C8 Science Panel made its determinations, a medical monitoring program was set up to screen people for the six diseases linked to C8. Brookmar was to work alongside the program’s DuPont-appointed director, Michael Rozen, a partner in the New York law firm of Feinberg Rozen LLC. Rozen is known as “the special master of disaster” for his work to minimize liability costs of corporate polluters, including companies that exposed workers to asbestos and oil giant BP after the Deepwater Horizon oil spill. (Center for Justice & Democracy 2014)

According to Keep Your Promises, a mid-Ohio Valley citizens’ group, DuPont and Rozen at first agreed to work with Brookmar, but in 2013 they went to court repeatedly to argue that Brookmar’s involvement was not necessary. Brookmar grew frustrated and announced that as long as Rozen remained as director of the program, it would not participate. (Keep Your Promises 2015a)

In January 2015, Keep Your Promises released invoices showing that DuPont had paid Feinberg Rozen about $9 million for running the medical monitoring program. In contrast, the law firm had paid out just over $50,000 in medical claims to area residents. (Saulton 2015) Two days later, Michael Rozen tried to make members of Keep Your Promises leave a town hall meeting and ejected a reporter from a local TV station. (Keep Your Promises 2015b) 

“What is Mr. Rozen trying to hide?” asked Harold Bock, an advisory committee member of Keep Your Promises, who resisted attempts to make him leave. “You can’t invite the whole community to an open forum and then kick out the journalists who come to cover it and the community members who come to ask important questions.” (Keep Your Promises 2015b)

The Chemours spinoff

In July 2015 DuPont will spin off its $7 billion Specialty Chemicals unit, which made C8/PFOA and now makes the replacement chemicals for Teflon and other products, to a new corporation called Chemours. U.S. Securities and Exchange Commission filings indicate that the spinoff will transfer legal liability for damage from C8 to Chemours. This could shield DuPont from full liability and allow the smaller company to claim that its assets aren’t enough to pay for the damage done in the mid-Ohio Valley and other places C8 was made or used. (U.S. District Court 2015b)

Chemours acknowledges that the Specialty Chemicals unit’s sales are declining. (SEC 2014) In September 2014, Chemours listed $298 million in environmental liabilities it will inherit, but DuPont’s own management estimates that the new company’s liability may be as much as $1 billion. (SRR 2015) Chemours’ finances, and the thousands of outstanding personal lawsuits over C8, raise the possibility that the company might go bankrupt.

It’s happened before. In one 2006 case, the oil company Kerr-McGee 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 did not provide Tronox with enough capital to cover its inherited liabilities and was engineered to shield the merged companies. In 2014 Anadarko settled for $5.15 billion, the largest environmental enforcement recovery payment the Justice Department ever obtained. (Checkler 2014)

DuPont on trial

Trial is scheduled for September 2015 in U.S. District Court in Columbus, Ohio, consolidating personal injury claims against DuPont by more than 2,500 residents of the mid-Ohio Valley. The court will first try two individual test cases. The first involves a woman who drank C8-contaminated water and has kidney cancer. The second, scheduled for November, involves a man who drank C8-tainted water and has ulcerative colitis.

Claims involving this much damage, affecting this many people, are more common in lawsuits against big pharmaceutical companies. It is also unusual for pollution cases to be tried with an agreement by the company not to dispute that chemical exposures at a certain level can cause a specific disease – the stipulation DuPont tried but failed to renege on.

The trial is important beyond its consequences for the mid-Ohio Valley contamination victims, because it will highlight the failures of the nation’s broken chemical safety law. DuPont maintained that the Toxic Substances Control Act did not require it to provide EPA with its secret studies. If companies can get away with withholding information on health hazards, EPA’s ability to take meaningful action under the law will always be severely compromised.