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In legal fight over toxic Teflon chemical, lawyers fear DuPont may seek exit through Chemours

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via EPA
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DuPont's Washington Works plant in Parkersburg, W.Va. is at the center of the class-action suit.

For more than two centuries, the DuPont chemical corporation has been an anchor of Delaware's economy. It's supported tens of thousands of jobs, plus cultural, philanthropic and medical mainstays.

 

But right now, it's also mired in a controversy just a few hours west of Wilmington: the years-long legal battle over use of a toxic chemical called PFOAin non-stick products like Teflon.

Reporter Nathaniel Rich wrote about the case for The New York Times Magazine in January, in a piece titled "The Lawyer Who Became DuPont's Worst Nightmare."

Rich profiled Cincinnati-based corporate defense attorney Rob Bilott. He took on the company's dumping of PFOA in the Ohio River Valley, and their knowledge of its devastating effects on human health.

"There's no scientific literature that he could find about this substance," Rich says of Bilott. "But he started to investigate further and started to see some pretty incredibly damning things as he dug."

It was all thanks to a cattle farmer named Wilbur Tennant, who showed Bilott a home video of his cows getting sick and dying from drinking the foamy water running out through a DuPont landfill in Parkersburg, W. Va. The Washington Works plant there made Teflon. It's now run by Chemours.

 

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In this clip of camcorder footage from the 1990s, West Virginia farmer Wilbur Tennant looks at the poisoned water running out of DuPont's nearby chemical landfill and the horrific health effects it's having on his cattle. The full video is more than 100 minutes long.

Bilott got a court order for a massive trove of documents detailing DuPont's relationship with PFOA, and began to piece together the story.

"To his surprise -- his shock -- he realized that this was not some obscure substance that was rarely used. In fact, they'd been using it for more than 50 years," Rich says. "They'd been conducting secret health studies about it for decades, and they'd known as early as the fifties and sixties that it caused cancer in lab animals, that it caused birth defects in the children of female workers at the plant."

"They'd known as early as the '50s and '60s that it caused cancer."

The substance was in the water in the community, the blood of the workers there, and even in blood banks across the country. Bilott had uncovered a point source of a chemical that's since been found in the bloodstreams of people and animals from pole to pole.

"And he also realized they knew they were dumping it in massive quantities into this landfill," Rich says. "So once he told DuPont he knew all of that, they settled the case, but for Rob it was really just the beginning."

In 2005, the EPA settled with DuPont over PFOA to the tune of $16.5 million, with no admission of liability required. But Bilott didn't stop there. Now, the company is embroiled in a class-action suit with 3,500 sick residents, out of 70,000 people in the six water districts around Parkersburg.

"All of these people had been drinking it, many of them for decades," Rich says. "And they were now dying from it, or having a number of horrible health conditions."

The first suit took place last fall, when 59-year-old cancer survivor Carla Marie Bartlett won damages from DuPont. The company is appealing the case.

Four more jury trials are set for this year -- the next, of ulcerative colitis sufferer John Wolf, begins next month. An Ohio judge recently scheduled 40 more trials per year starting in April 2017.

"The real story here is that there's no regulation"

Rich says the Parkersburg case illuminated a much larger problem that affects millions of people -- including those who work at and around DuPont's corporate headquarters in Wilmington.

"There's great anxiety about what kind of effect this is having, whether this has some responsibility for higher cancer rates globally," he says. "But the main truth is that there's just so much vagueness about all of this."

Data from the EPA and Environmental Working Group shows that more than 320,000 people in the Artesian and United Water Company districts of New Castle County are drinking water laced with high levels of PFOA, along with other chemicals, with a maximum concentration of 1.8 parts per billion.

Rich says the EPA has estimated that less than a quarter of that is the maximum safe limit for short-term PFOA exposure -- 0.4 ppb, still higher than the estimates of Rob Bilott's toxicologists -- but they haven't finalized that figure. They've said they may announce a lifetime safe limit sometime this year.

People in New Castle County are drinking water laced with up to 1.8 parts per billion of PFOA and other chemicals. The EPA has estimated a safe short-term limit that's less than a quarter of that.

"There is this deep irony that the decisions that have been made over the last 60 years to continue using this stuff, despite the internal science they were doing," he says -- and DuPont's decision to make its own PFOA after supplier 3M phased it out in 2003 -- "are damaging, on some level, to the people who made them and their families and descendants."

Rich notes that the "real story here is that there's no regulation" -- the EPA regulates a fraction of the tens of thousands of chemicals that companies like DuPont use today. PFOA isn't one of them, but substitutes, now made by spin-off Chemours, are.

"Fifteen years after Bilott brought this to the EPA's attention … they are now on the verge, they claim, of issuing something called a health advisory [for PFOA], which is not binding in any way and, I think, compels no action," Rich says. "But even to get to this kind of statement about this stuff, even after all this science, it still hasn't happened."

He says many chemicals on the market are likely safe -- but people just don't have the tools to know.

"We're in a situation where we kind of just hope the chemical companies who are responsible for regulating themselves, essentially, are doing the right thing," he says. "We hope their number one motive is not profit -- is keeping us safe -- but I don't think capitalism really works that way."

Even, he says, in economies with deep, historic ties to those corporations.

"I don't think that loyalty goes both ways"

Rich notes that DuPont's shedding of its chemical division in the form of Chemours came just months before the first PFOA trial last year. Meanwhile, DuPont had stopped making PFOA in 2013 -- two years before Chemours was formed.

"There's deep concern on the plaintiffs' side that this spinoff is a way to minimize liability," Rich says. "In the case that they're held liable for an enormous amount of money, there's concern that Chemours might simply go bankrupt and avoid having to pay these people, and DuPont would be insulated from that."

"There's concern that Chemours might simply go bankrupt and avoid having to pay these people, and DuPont would be insulated from that."

Rich says DuPont has told him that isn't their strategy. But their pending merger with Dow Chemical muddies the waters even more. Each company is laying off tens of thousands of workers in preparation for the consolidation -- DuPont will cut 1,700 in Wilmington by next month.

 

In the long-term, it's unclear just how much DuPont business will remain in the state where it was born.

"I don't think that loyalty goes both ways," Rich says. "I don't think it should surprise anyone that a huge multi-national corporation may not feel the same level of loyalty to the people they employ at one factory as those people might feel towards the company."

He says the sort of sway that DuPont holds over the economy in Delaware and places like the Ohio River Valley is "always a bad thing."

"I think it warps people's understanding of how some of this stuff works," he says. "The people in Parkersburg, who've been very loyal to the company and generally have been treated well by it, are beginning to feel very bitter and betrayed once they realized that this company that they had pledged their loyalty to and defended was, in fact, poisoning them."

Read Nathaniel Rich's piece for The New York Times Magazine here, and see more of our DuPont coverage here.

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