The Environmental Protection Agency has long known that C8 is harmful to human health. But the chemical, which is in the bloodstream of 99.7 percent of Americans, remains unregulated at the national level.
MIKE ROMINE GREW UP in Blennerhasset, West Virginia, not far from DuPont’s Parkersburg plant. Throughout his childhood and young adulthood, Romine was probably exposed through his drinking water to C8, a slippery, soap-like chemical used to make Teflon pans and Stainmaster carpet and hundreds of other products. His home was served by the Lubeck water district, one of six districts near the plant later found to be severely contaminated with the chemical, but his greatest exposure to C8 almost certainly came from working at the DuPont plant, where he was a welding inspector.
Romine spent some of his time in the company’s Teflon division, and he particularly remembers taking part in the “Teflon shut down,” a spring-time ritual. For a few days each year, the company would shut down operations in the plant to prepare for the coming year. Romine helped install new piping. He didn’t know what C8 was at the time, but there was a white powdery substance dusting many of the surfaces in the plant. “It’s on the pipe, on the inside of it,” said Romine. “You don’t all the time have on gloves. It’s on your coveralls.”
Twelve years ago, when Romine was 58, he was diagnosed with kidney cancer. No one in his family had ever suffered from this rare disease. Surgeons removed the cancerous organ, leaving Romine with reduced kidney function. Now he has to urinate frequently and his doctors have suggested that he change his diet and refrain from running, an activity that had been a regular part of his life before the surgery. Every six months he must return to the doctor to have his remaining kidney checked.
Today, Romine has mixed feelings about DuPont. He worked for the company full-time as a contractor for eight years, and his best friend was employed in one of DuPont’s labs. “In my heart, I felt I was DuPont,” said Romine, who has enduring respect for the company. “DuPont has really good safety rules, good people, good personnel,” he said. “I enjoyed working down there.”
Still, for all the good DuPont has done his community as an employer and as a supporter of local organizations and sports teams, Romine is concerned that the company has not been fully honest — especially after a panel of scientists, funded by a class-action settlement, found that kidney cancer and five other diseases had been strongly linked to C8 exposure. “DuPont made me money,” he said, “but I certainly think now they needed to come clean with whatever happened.”
IN MARCH 2001, an attorney named Robert Bilott embarked on an ambitious plan to force DuPont to come clean — to tell what it knew about C8 and, he hoped, eliminate the chemical from the water consumed by Romine and others throughout the country. Bilott sent packages of evidence to the federal Environmental Protection Agency, the West Virginia Department of Environmental Protection, and the Attorney General of the United States, among other regulators. Inside were more than 100 documents he had received through discovery in a lawsuit he had filed in 1999 on behalf of a West Virginia farmer named Wilbur Tennant, whose cows died after being exposed to PFOA, also called C8 because of the eight-carbon chain that makes up its chemical backbone. The documents showed that DuPont, which since the early 1950s had used C8 to manufacture Teflon and other products in its Parkersburg plant, had known for years that C8 posed health dangers and had spread beyond the company’s West Virginia plant into local sources of drinking water.
Bilott even arranged to go to Washington, D.C., to personally present his findings to the EPA. When DuPont attorneys learned about Bilott’s plan, they tried to stop him with a last-minute gag order. They were unsuccessful, however, as Bernard Reilly, one of the company’s in-house lawyers, noted in an email to his son on March 27, 2001:
Court yesterday did not agree to shut up plaintiff lawyer in our Parkersburg situation and today he testifies an EPA hearing and will try to slam us one more time.
Bilott did make his case to the federal regulators and reiterated the request he made in the letter that accompanied his evidence, that the agency regulate C8 under the Toxic Substances Control Act “on the grounds that it ‘may be hazardous to human health and the environment.’”
By some measures, Bilott has in fact been successful in slamming DuPont, but 14 years after he sent his evidence to the EPA, the company has managed to avoid a full reckoning for its actions. And C8, which is in the bloodstream of 99.7 percent of Americans, remains unregulated at the national level.
During the five decades in which DuPont used and profited from C8, the company had only infrequently discussed the chemical with environmental authorities, and it kept most of its extensive internal research on the chemical confidential. After Bilott sent out his packages of evidence, however, DuPont’s relationships to government agencies shifted dramatically. Bilott’s revelations had the power to tarnish the company’s reputation and lead to huge legal and cleanup costs, so DuPont focused on weathering the scrutiny of regulators and keeping its name — and profits — unscathed.
Although Bilott and his clients eventually prevailed in a ground-breaking class-action lawsuit filed the same year he approached the EPA, that settlement had limited applicability. Action by the EPA could hold DuPont accountable nationally.
Locally, the matter was well in hand. Several regulators at the West Virginia Department of Environmental Protection had already shown their allegiance to the company, one of the state’s biggest employers. In October 1996, after the regional office of the EPA began investigating a complaint about one of the company’s landfills, Eli McCoy, the director of the West Virginia DEP, allegedly sent the company a document “to aid DuPont in diffusing any potential enforcement action,” as Bilott put it in a letter to the EPA. After a few weeks of negotiation, the West Virginia DEP signed off on a consent decree, in exchange for a mere $200,000 penalty and minor upgrades from DuPont. McCoy then went to work for a consulting firm DuPont hired to help it comply with that agreement.
He wasn’t the only regulator who followed the money. As Callie Lyons reported in her 2007 book, Stain-Resistant, Nonstick, Waterproof, and Lethal, three attorneys handling C8 at the West Virginia DEP emerged on the other side of the revolving door as employees of the same local law firm that defended the chemical on behalf of DuPont. Reached for comment, McCoy said that he did not recall details of the matter, noting that he had not worked for the West Virginia DEP for 18 years.
The EPA presented a potentially more challenging situation. The federal agency has the authority to regulate C8 under several laws, including the Toxic Substances Control Act and the Clean Water Act. Through either route, regulation could trigger hefty cleanup costs. In 2002, the EPA initiated what is called a “priority review,” a critical first step toward regulation, which entails assessing a chemical’s risk to determine whether it should restrict or ban it. The EPA puts a special priority on chemicals that are toxic, persist in the environment, and accumulate in people’s bodies. C8 fit the bill on all three counts.
In response, DuPont assembled a high-powered team that included former EPA officials to oversee its C8 communications with the federal agency. Michael McCabe, a consultant who managed the company’s communications and C8 strategy with the EPA starting in 2003, had served as deputy administrator of the agency until 2001. Linda Fisher, a lawyer who succeeded him in the No. 2 position at the EPA, was also central to DuPont’s C8 campaign. In fact, just over a year after leaving the agency in June 2003, Fisher was already deeply involved in the defense of C8. It surely didn’t hurt that William Reilly, who led the EPA from 1989 to 1993, sat on DuPont’s board of directors.
DuPont’s C8 team benefited from inside information about what regulators were thinking about the chemical, according to testimony McCabe gave when he was deposed in 2007. They knew what was in some of the agency’s documents before they became public and saw at least one presentation before it was given. The DuPont team even drafted quotes to be attributed to EPA officials, which DuPont later embedded in press releases. In his deposition, McCabe said the practice of asking the EPA for a quote was “customary.”
Several other firms also served as consultants, including a company called the Weinberg Group. In an April 2003 memo, P. Terrence Gaffney, the group’s vice president for product defense, proposed “a fresh new approach” to help DuPont with its defense of C8:
The constant theme which permeates our recommendations on the issues faced by DuPont is that DUPONT MUST SHAPE THE DEBATE AT ALL LEVELS. We must implement a strategy at the outset which discourages governmental agencies, the plaintiff’s bar, and misguided environmental groups from pursuing this matter any further than the current risk assessment contemplated by the Environmental Protection Agency (EPA) and the matter pending in West Virginia. We strive to end this now.
The memo bragged that the company had long experience in managing chemical PR crises. “Beginning with Agent Orange in 1983,” Gaffney wrote, “we have successfully guided clients through myriad regulatory, litigation, and public relations challenges.” Weinberg’s proposal included using “focus groups of mock jurors to determine the best ‘themes’ for defense verdicts,” retaining “leading scientists to consult on the range of issues involving PFOA so as to develop a premium expert panel,” and efforts to “reshape the debate by identifying likely known health benefits of PFOA exposure by … constructing a study to establish not only that PFOA is safe … but that it offers real health benefits.”
The “Weinberg memo” gained a level of infamy when a copy was made public in 2006. Two years later, Rep. John Dingell of Michigan brought it up in a Congressional investigation, noting, “The tactics apparently employed by the Weinberg Group raise serious questions about whether science is for sale at these consulting groups.” DuPont, which has asked the judge in the upcoming trials to exclude any mention of the Weinberg Group, denied that it hired the consulting company to work on C8. But court documents, including invoices (one of which mentions PFOA specifically), suggest otherwise. Two years later, the Weinberg Group again offered its services to DuPont and in an email made reference to “the C8/fluorocarbon chemicals controversy” and noted that “the Weinberg Group which offers services in evidence-based advocacy was given some discrete assignments in developing strategies for helping DuPont in its advocacy.” Reached by telephone, Matthew Weinberg, the CEO of the Weinberg Group, declined to comment, but then added: “The Weinberg Group is no longer engaged in any of this work. We’re an FDA consulting firm.”
ALTHOUGH THE EPA is specifically charged with the task of protecting the public by reducing the risk of exposure to commercial chemicals, the agency is also limited in what it can require of industry. Unlike the Food and Drug Administration, which reviews prescription medications before they can be brought to market, the EPA has little power to prevent a company from using a chemical before it is proven to be safe. Although in Europe chemicals must be proven safe before they are put on the market, in the United States — despite repeated revelations that widely used industrial chemicals (including PCBs, fire retardants, and many others) have severe public health and environmental effects — chemical manufacturers have few legal obligations to ensure that their products are safe. In America, killer chemicals are essentially innocent until proven guilty.
Another conundrum of our chemical regulatory system is that regulators must depend on the manufacturers for data on the chemicals they wish to regulate. Yet this information can be difficult to obtain, precisely because the chemicals are unregulated. To move forward with the priority review of the chemical it had begun in 2002, the EPA needed to know how polluted with C8 were the water, air, soil, plants, animals, humans, and food sources near the DuPont plant in West Virginia.
DuPont and other companies that used C8, including Daikin, 3M, and Dyneon, quickly volunteered to provide the information. The companies came up with several research proposals and then together, represented by an entity called the Fluoropolymers Manufacturers Group, lobbied the EPA to make the agreement regarding the chemical completely voluntary. Among the alleged benefits of the voluntary option were “quicker implementation” and that “monitoring data can be obtained sooner,” members of the manufacturers group argued at a January 2004 meeting with the EPA. Of course, the problem with a voluntary agreement is that it would be unenforceable.
Without a legally binding agreement, the EPA was unable to enforce the terms of its interactions with DuPont. Mostly, the agency relied on negotiated consent agreements. If DuPont didn’t like the terms, it could simply walk away from the deal. In one of these agreements, a regional consent order dated March 2002, DuPont agreed to provide clean water to residents near its plant whose drinking water was contaminated above a certain level. Despite the fact that the company had set its own internal safety limit for the maximum amount of C8 in drinking water at 1 part per billion (ppb), in the consent order the company agreed only to a limit of 14 ppb. Two months later, that “trigger level” was raised to 150 ppb, where it stayed until 2006.
While it was pressing for an unenforceable national agreement, DuPont was also negotiating the future of C8. When its legal troubles concerning C8 had first begun, the company had clearly banked on continuing to use C8, as evidenced by its 2002 decision to invest $23 million in a facility to produce it. But by 2005, after DuPont settled the class-action suit over water contamination around its West Virginia plant, according to the sworn testimony of McCabe, the company told regulators it was open to the possibility of phasing out C8.
On this front, too, the company set the terms. In an October 2005 meeting with the EPA, McCabe presented a slide about the company’s “critical needs,” among them that “EPA restate safety of products and no health effects.” McCabe also asked the EPA to make a public statement acknowledging DuPont’s leadership in withdrawing C8, and to ensure that all the other companies using the product also be required to retire it.
Around this time, DuPont reached out to the Bush White House, as emails that emerged in discovery showed. McCabe admitted in a deposition that DuPont wanted to let the EPA know that the Bush administration was supportive of its proposal. McCabe, in his deposition, said that such contacts were “not unusual.”
PERHAPS IT IS ALSO not unusual that all of the company’s pending questions around C8 — whether the company would be fined for withholding information about the chemical from the government; whether it would retire its chemical; and whether it would be subject to binding regulation by the EPA — were resolved in a matter of months, shortly after the contacts between DuPont and the White House.
A month after the company finalized its voluntary commitment to research the extent of contamination around its West Virginia plant, the EPA resolved the matter of the fine. The settlement reached that month stemmed from DuPont’s unlawful failure to alert the EPA about information regarding its risk to human health. Specifically, the company withheld what it knew about the toxicity of C8, the presence of C8 in drinking water, the presence of C8 in the blood of people living near its West Virginia plant, and in the babies of some of its female workers, two of whom were born with birth defects.
At the time, the EPA trumpeted the fact that its $10.5 million fine of DuPont was “the largest civil administrative penalty EPA has ever obtained under any federal environmental statute.” The settlement also required the company to spend $6 million on “supplemental environmental projects.” Less remarked upon was the fact that the fine was a small fraction of the maximum $300 million the agency technically could have collected.
The total $16.5 million penalty was an even smaller fraction of the $1.6 billion in quarterly sales that DuPont’s performance materials division was enjoying at that time — less, in fact, than the division’s sales in a single day.
The following month, DuPont finalized the specifics of its one significant concession: to participate in what the EPA called a “global stewardship program,” which in practice meant a 95 percent reduction in C8 emissions by 2010 and eliminating use of the chemical by 2015. In January 2006, Susan Stalnecker, a DuPont vice president, sent a letter to Stephen Johnson, then head of the EPA, confirming the agreement and alluding to DuPont’s plan to replace C8 with another chemical, noting that “success in this effort will depend on timely review and approvals for these new products.”
As McCabe’s deposition shows, the plan was carried out according to the company’s specific terms. As DuPont had requested, the EPA invited the seven other companies that used C8, including 3M, to also participate in the stewardship program, and all agreed to reduce their emissions and phase it out. And, as DuPont had requested, the EPA issued reassuring statements about C8 and the products that contained it. On January 25, 2006, in the announcement of the global stewardship program, the agency said that “to date EPA is not aware of any studies specifically relating current levels of PFOA exposure to human health effects.” On the same day, DuPont issued a press release containing the agency’s statement.
Five days later, a draft report by an EPA Science Advisory Board that was reviewing C8 found the chemical to be a “likely human carcinogen.” DuPont vice president Susan Stalnecker sent an email to her team:
Publicity around SAB report has linked the Teflon brand to cancer. Coverage has been broad in print and network media. Significant disruptions in our markets and are [sic] consumers are very, very concerned.
What’s telling about the email is the company’s attitude toward the EPA and its assumption that of course the agency would cooperate in the damage-control campaign.
In our opinion, the only voice that can cut through the negative stories, is the voice of EPA. We need EPA … to quickly (like first thing tomorrow) say the following: Consumer products sold under the Teflon brand are safe.
According to a February 17, 2006, email from Susan Stalnecker to DuPont CEO Charles Holliday, Linda Fisher then contacted Marcus Peacock at the EPA and expressed DuPont’s concerns about the need for the EPA to make a statement. That February, a group of high-profile health ethicists and epidemiologists hired by DuPont to consult on C8 advised the company against making any further public statements denying that C8 poses a risk to human health.
On March 2, 2006, the EPA obligingly issued another statement saying, “The agency does not believe that consumers need to stop using their cookware, clothing, or other stick-resistant, stain-resistant products.” The agency’s own research has since shown that consumer products are in fact a source of C8 exposure. While Teflon-coated pans appear to account for only a small amount of Americans’ C8 exposure, other consumer products, such as coatings for stain-resistant carpets, floor wax, and upholstery, are greater sources of contamination, according to a 2009 EPA analysis of 116 consumer products.
McCabe, in his December 2007 deposition, insisted that the highly favorable public statements by the EPA were “not a quid pro quo” for the company’s agreeing to phase out C8.
The Intercept requested comment from McCabe and Fisher but received no reply. Stalnecker did not respond to emails requesting comment. The EPA declined to comment on the suggestion that it had engaged in a quid pro quo with DuPont. In a statement (see below), DuPont asserted that Fisher “has never represented DuPont on PFOA matters with the EPA.”
DuPont has phased out the use of C8, but in other respects the company simply failed to live up to its end of the bargain. DuPont did file three reports about C8 contamination in air, water, soil, and biota around its Parkersburg plant in 2008. But a team of independent peer reviewers found that these reports suffered from “significant limitations and omissions” and asked the company to fill in several gaps. Among dozens of additional requests, the reviewers asked DuPont to perform more frequent and extensive sampling of the Ohio River; to expand the 2-mile area where it was measuring the impact of C8 exposure; and to provide more data on the presence of C8 in local water, soil, air, fish, game, and meat, and in the blood and breast milk of residents in the area of the plant. DuPont then revised its report, but the EPA again requested that extensive additional research be done in 2010.
In 2011, the EPA reiterated the need for more data, noting in particular that the company did not test milk from cows in contaminated areas. The next year, without fulfilling many of the reviewers’ outstanding requests, DuPont submitted what it said would be the final version of the report it had promised under the voluntary agreement it had reached with the EPA in 2005. At the time the agreement was hammered out, proponents had noted that it would be public — and, as such, that people would know if the company failed to keep its promises. But little public mention was made when DuPont submitted in November 2012 its final report that was supposed to help with monitoring C8. Without any legal recourse, the EPA quietly filed it away, and a national standard for C8 contamination in drinking water was never set.
MEANWHILE, REGULATORS in New Jersey were waging their own battle against C8. Back in 2006, the state began to consider setting a drinking water standard for the chemical. The New Jersey Department of Environmental Protection knew there was some contamination around a DuPont plant in Deepwater, a community about 20 miles down the Delaware River from Philadelphia. In September 2003, groundwater tests under the plant had revealed C8 levels as high as 46.6 ppb. In some workers at the New Jersey plant, in 2007, blood levels were very high; one was measured at 4,400 ppb. According to data from the CDC, blood levels of the chemical in the general U.S. population in 2007 averaged around 4 ppb.
A group of 15 scientists and water experts known as the New Jersey Drinking Water Quality Institute was responsible for proposing drinking water standards in the state. Their task was clearly laid out by New Jersey law: to determine maximum contaminant levels, including the exact amount of a chemical that, when drunk by a million people over their lifetimes, causes no more than one case of cancer. For more than 20 years, the institute had been crunching numbers to arrive at the maximum allowable level of a given contaminant and then submitting the figure to the state’s Department of Environmental Protection. During most of that time, the group had carried out its charge with little intervention and even less fanfare.
Eileen Murphy, head of the Division of Science, Research and Technology at the New Jersey DEP, was closely studying C8 at the time and was invited, along with members of her staff, to meet with DuPont executives.
Murphy was investigating whether C8 was dangerous. The EPA had already classified the chemical as a likely human carcinogen — a term applied to chemicals that cause tumors in more than one species — and she knew about numerous studies that indicated it to be toxic. She said as much at the meeting. Murphy and the DuPont representatives then “disagreed widely over the interpretation of the toxicology studies,” Murphy remembered recently. “They said our interpretation was overly conservative.” Afterward, “we never heard from them again,” Murphy said. “They just went higher than us. And liked that path better.”
In 2007 the Drinking Water Quality Institute came up with the figure for C8 and sent it to the New Jersey DEP. The proposed standard was .04 ppb.
When DuPont learned about the proposal, a tiny fraction of the level the company had helped West Virginia set a few years before, McCabe and his communications team went to work. If the proposed safety level were enacted, the company could face enormous cleanup and liability costs. McCabe drafted letters arguing that New Jersey’s numbers were far too low and sent them to the commissioner of New Jersey DEP, the governor’s office, and the state’s Economic Development Office.
DuPont representatives later came to subsequent meetings at the New Jersey DEP, to which Murphy was no longer invited. Not long after, in October 2008, Murphy was preparing to submit for peer review an article about C8 in New Jersey water systems that one of her colleagues had written, when Lisa Jackson, who was then New Jersey’s DEP commissioner, asked her to stop its progress toward publication. The article explained the agency’s logic for setting .04 as a safety standard and noted that it had already detected C8 above that level in five drinking water systems.
“I did it anyway,” Murphy recalled in an interview this past spring. “I was reassigned after that.” Indeed, shortly after Murphy submitted the article for peer review, she was relieved of her position as division head, in which she had managed a team of PhD scientists like herself. Instead, Murphy was given a post with few responsibilities and in the months before she left the agency filled her time by working on low-level projects and helping the secretaries with their typing. Lisa Jackson went on to serve as administrator of the federal EPA under Barack Obama. She is currently vice president of environment, policy, and social initiatives for Apple. The Intercept left repeated messages for Lisa Jackson requesting comment and attempted to contact her via email, but received no reply.
In September 2010, the Drinking Water Quality Institute began to move forward with the .04 water standard, nine months after Chris Christie became of governor of New Jersey. Christie had made it clear, with his “red tape commission” and pro-business executive orders, that he was unlikely to pass new regulations. But the Christie administration went even further; not only did it apparently block the proposed standard, it also effectively disbanded the water quality group. Although the institute and its committees had met nearly 50 times in the five years prior, after the September 2010 meeting the group did not convene again for almost four years.
Meanwhile, the New Jersey DEP had created a new body called the Science Advisory Board, to advise on a number of environmental issues, including water quality. In 2011, three DuPont scientists, each of whom have worked on C8, were appointed to the board.
This past spring, the Drinking Water Quality Institute met for only the second time since it attempted to set a C8 standard in 2010 (the first was in 2014). The chair of the recently resurrected group, a toxicology professor named Keith Cooper, told me that he’s committed to setting a new drinking water standard for C8. “These recommendations are for the health and safety of the people of New Jersey,” said Cooper, who added that he would do everything he could to push back if the standards fail to move forward this time around, including bring the matter to the current DEP commissioner, Bob Martin. “First I will meet with Martin and then I will request to meet with Christie.”
But because the last set of proposed regulations never made it into law and have officially sunset, the whole process must begin again, which means at least another year of legal, scientific, and administrative preparations. The process is likely to take much longer. By that point, Christie may no longer be governor, but DuPont will have succeeded in delaying and perhaps permanently deferring its environmental accountability for contaminating New Jersey waters with C8. The Christie administration did not reply to requests for comment.
DESPITE ALL THESE setbacks, it is still not too late for the EPA to regulate C8 and require companies such as DuPont to pay for cleanup costs. Attorney Robert Bilott clearly hasn’t given up on the cause, though there is a certain pathos in the letter he sent the EPA this January, which begins this way:
We first wrote to US EPA and WVDEP in March of 2001 — over 13 years ago — to alert your Agencies to the imminent and substantial threat to human health and the environment posed by the contamination of human drinking water supplies with perfluorooctanoic acid.
Indeed, there is voluminous, and repetitive, correspondence about C8 between the agency and the lawyer. In 2010, the agency responded to his urging to set a national drinking water level with a promise that it would do so by the end of that year. Then, in 2011, the agency promised to set the level by the end of that year. And, again, in a February 2012 letter, the EPA claimed it would take action in the “next few months” or by “early 2013.”
A February 23, 2015 letter from Susan Hedman, a regional administrator of the EPA, has a similar ring, saying that a lifetime health advisory may be developed “later this year,” at which point the agency might just possibly reevaluate its 2009 consent order with DuPont.
Recent testing by the EPA found C8 in 94 water systems serving a total of 6.5 million Americans. The minimum testing level was .02 ppb, which is far greater than new estimates of an approximate safe level in drinking water. If the EPA does ever decide to regulate C8 and set a national drinking water standard, DuPont might still be able to avoid cleanup costs, since the company has now cut its ties with the chemical. In July, DuPont spun off its chemical division into a separate company called Chemours. DuPont has promised to cover whatever settlements result from the crop of personal injury claims scheduled to come to trial in the fall. But, if they’re ever levied, cleanup costs for the C8 DuPont leaked into the larger environment, which could add up to many billions of dollars, could fall to Chemours, a much smaller company.
Over the years, as letters have flown back and forth between lawyers and various agencies, levels of the chemical in human blood throughout the United States appear to be dropping. That is good news for the people whose systems the chemical is exiting — the chemical has a half-life in humans of about four years — though not necessarily for the planet at large, since the chemical isn’t going away. It’s simply being diffused, spreading throughout the world’s water systems.
Meanwhile, as it was dispensing with its C8 problem, DuPont was busy introducing new chemicals to replace the old one. Since at least 2009, the company has been using what it calls the “Capstone” line of surfactants and repellants, which in July became the property of Chemours. The replacement molecules are reported to have a six or fewer fluorinated carbon chain as their base but little more about them is known since their chemical make-up is proprietary. FDA records obtained by the Environmental Working Group show that since 2005 the agency approved at least 10 “fluorochemicals” that could replace C8 in food packaging, though there is little public record of health risk assessments being performed on them.
This spring, an international group of scientists and environmental advocates issued a public warning about these replacement chemicals. The “Madrid Statement,” as it’s called, noted that while the “shorter-chain” chemicals used to replace C8 may not stay in human bodies quite as long, “they are still as environmentally persistent as long-chain substances or have persistent degradation products.” The statement, which has now been signed by hundreds of scientists, continued: “Because some of the shorter-chain PFASs are less effective, larger quantities may be needed to provide the same performance.”
The Madrid Statement called on governments to require companies to conduct more toxicological testing and to make chemical structures public. And this year, after it banned the chemical, the European Union proposed a global ban on C8, which is now being produced in India, Russia, and China.
The United States has yet to set a level that’s safe to drink. As Mike Romine in West Virginia sees it, there is something terribly wrong with letting people be exposed to a chemical that can hurt them.
Such thinking was the basis for the class-action suit targeting the plant in West Virginia where Romine worked and the subsequent settlement requiring DuPont to provide clean water to tens of thousands of people in nearby water districts. In a few weeks, the first of approximately 3,500 personal injury claims resulting from that class action will come to trial in Columbus, Ohio. We may soon know if a jury will hold DuPont accountable for the lives it has forever altered, through chemistry.
But whatever happens in those claims, the overwhelming majority of Americans have also been exposed. So far, no one has offered them any recourse or offered to ensure that their water is safe to drink.
EDITOR’S NOTE: DuPont, asked to respond to the allegations contained in this series, initially declined to comment due to pending litigation.
In previous statements and court filings, however, DuPont has consistently denied that it did anything wrong or broke any laws. In settlements reached with regulatory authorities and in the class-action suit, DuPont has made clear that those agreements were compromise settlements regarding disputed claims and that the settlements did not constitute an admission of guilt or wrongdoing. Likewise, in response to the personal injury claims of Mike Romine, Jeromy Darling, and others, DuPont has rejected all charges of wrongdoing and maintained that their injuries were “proximately caused by acts of God and/or by intervening and/or superseding actions by others, over which DuPont had no control.” DuPont also claimed that it “neither knew, nor should have known, that any of the substances to which Plaintiff was allegedly exposed were hazardous or constituted a reasonable or foreseeable risk of physical harm by virtue of the prevailing state of the medical, scientific and/or industrial knowledge available to DuPont at all times relevant to the claims or causes of action asserted by Plaintiff.”
Before the publication of this article, DuPont provided the following statement:
DuPont has worked collaboratively with the U.S. Environmental Protection Agency (EPA) to meet and exceed the Agency’s program requirements on PFOA. We have never requested nor have we received special consideration or treatment from the Agency regarding PFOA.
In 2006, EPA and the eight major companies in the industry, including DuPont, launched the 2010/15 PFOA Stewardship Program, in which companies committed to reduce global facility emissions and product content of PFOA and related chemicals by 95 percent by 2010, and to work toward eliminating emissions and product content by 2015.
Prior to the development and implementation of the PFOA Stewardship Program, EPA posted the following statement on the use of consumer products on the Agency’s website. “The information that EPA has available does not indicate that the routine use of consumer products poses a concern. At present, there are no steps that EPA recommends that consumers take to reduce exposures to PFOA.” The statement is the Agency’s recommendation, and DuPont had no involvement in its development.
With respect to Linda Fisher, for over 30 years, she has served with distinction as a leader in environmental protection, health and safety for the EPA and later for private businesses. Throughout her career, Linda has upheld the highest standards of integrity and ethical behavior, and has fully complied with the EPA’s ethics rules since leaving EPA, and later as DuPont’s Chief Sustainability Officer. In her role as Chief Sustainability Officer Linda was instrumental in helping DuPont design and implement its Global Stewardship Program to ensure the company met its commitments with the EPA. Linda has never represented DuPont on PFOA matters with the EPA.
Our work with the Agency has been and remains transparent, and we have cooperated in every way with the spirit and letter of applicable laws and EPA guidelines.
When contacted by The Intercept for comment, 3M provided the following statement.
In more than 30 years of medical surveillance we have observed no adverse health effects in our employees resulting from their exposure to PFOS or PFOA. This is very important since the level of exposure in the general population is much lower than that of production employees who worked directly with these materials,” said Dr. Carol Ley, 3M vice president and corporate medical director. “3M believes the chemical compounds in question present no harm to human health at levels they are typically found in the environment or in human blood.
This article was reported in partnership with The Investigative Fund at The Nation Institute.
Ava Kofman and Sheelagh McNeill contributed to this story.
In this series, Sharon Lerner exposes DuPont’s multi-decade cover-up of the severe harms to health associated with a chemical known as PFOA, or C8, and associated compounds such as PFOS and GenX. Read our complete coverage of PFAS pollution.
When attorney Robert Bilott filed suit against DuPont on behalf of a West Virginia cattle farmer, he had no way of knowing the case would lead to one of the most significant class actions in environmental law.
HEN JEROMY DARLING WAS 26, he worked in a warehouse that was so big he rode a bike to get around it. One day, as he was pedaling from one place to another, his foot slipped and he bumped his groin on the crossbar. The initial pain was no surprise. What was odd, though, was that the spot he hit continued to hurt for days. Darling was athletic and hearty and, like many young people, hadn’t seriously entertained the possibility of illness. But when the pain persisted, he went to a doctor, who diagnosed him with testicular cancer.
Darling had two surgeries to treat the disease — one to remove his testicle and another to remove lymph nodes from his abdomen. The second left him with 76 staples and a profound exhaustion. It was several months before he was able to return to work, and many more before he felt like himself again. Back then, in 1998, it didn’t occur to Darling to question why he got sick. He just chalked it up to bad luck and focused on getting better.
Now 43 and living in Parkersburg, West Virginia, just a few miles from where he grew up in Belpre, Ohio, Darling has other theories about his cancer. Both towns are within “the Chemical Valley,” which encompasses the hilly area of western West Virginia and eastern Ohio and is home to many big chemical companies.
DuPont’s Washington Works plant, one of the area’s biggest private employers, sits in a bend of the Ohio River just across the water from Belpre. Lately Darling can’t help but think that the sprawling facility, whose smokestacks still poke into the sky near his home, was responsible for his bad luck.
T MAY HAVE BEEN LUCK, too — good or bad, depending on what side of the case you’re on — that led the attorney Robert Bilott to sue the DuPont company. In any case, he was an unlikely person to take on one of the world’s largest chemical companies. A partner at a corporate firm in Cincinnati, Bilott had spent his first eight years as an attorney on the other side of the table, defending large companies like DuPont. But in 1999 a cattle farmer named Wilbur Tennant came to see him. Tennant told him that DuPont had bought land from his family that was adjacent to his farm, for what the company had assured him would be a non-hazardous landfill, according to a letter Bilott later filed with the Environmental Protection Agency. Soon, a stream his cows drank from started to run smelly and black, with a layer of foam floating on the surface. Within a few years, hundreds of Tennant’s cattle had died. Bilott had no way of knowing at the time that what seemed like a straightforward case would lead to one of the most significant class-action lawsuits in the history of environmental law.
In 2000, after spending more than a year on the case, Bilott still didn’t have any idea what had killed the cows. None of the chemicals DuPont had informed him about could explain the die-off. DuPont even agreed to do a study with the EPA on what might have caused the deaths. The study concluded that the Tennants must have mismanaged their animals, declaring that “there was no evidence of toxicity associated with chemical contamination of the environment.”
It was only after one of the attorneys working on the case stumbled across a document that mentioned a compound called PFOA that he began to solve the mystery. Known within the chemical industry as a “surfactant,” because it reduces the surface tension of water, PFOA — short for perfluorooctanoic acid — was slippery, chemically stable, and a critical ingredient in the manufacture of hundreds of products, including Teflon. Almost no one had heard of the stuff back then. Also called C8 because of the eight-carbon chain that makes up its chemical backbone, PFOA was just one of tens of thousands of unregulated industrial substances manufactured and used by American companies without any significant oversight by environmental or health authorities.
After more digging, the lawyers learned that the Minnesota-based company 3M had just pulled a similar perfluorinated compound, called PFOS, from the market. That led Bilott to make a request that changed the course of the trial about the cows, his career, and the future of the chemical giant he was facing: He asked for all of DuPont’s documentation pertaining to PFOA, or C8, through the legal discovery process.
What he received made it clear that even as the company had been pleading ignorance over what might possibly have killed Tennant’s cows, some DuPont employees were very well aware that C8 had seeped into local water. In fact, company scientists had been charting its presence in the Ohio River and nearby drinking water for almost two decades, and had been documenting its health effects since 1954, just three years after DuPont first used the chemical in one of its signature brands: Teflon.
The documents Bilott received included studies showing that the company had known C8 could affect the livers of dogs and humans. The studies also indicated that C8 encouraged the growth of testicular tumors in rats, that exposed workers suffered more frequently from endocrine disorders, and that the company had also documented elevated rates of certain cancers, including kidney cancer, in workers. Bilott learned that the company had been quietly monitoring public drinking water outside its plant and, since 1984, had been documenting C8’s presence at potentially dangerous levels. As far back as 1991, DuPont had estimated the C8 in a stream from which cattle drank at 100 parts per billion — which was 100 times greater than an internal safety limit the company had set for drinking water. In 2001, DuPont quickly settled the Tennant case for an undisclosed sum.
8 MIGHT SIMPLY have remained a problem for cows if not for another unlikely environmentalist, a Parkersburg elementary school gym teacher and former field coordinator for the AFL-CIO named Joe Kiger. When he first got a letter in October 2000 from the Lubeck Public Service District, the company that provides his drinking water, Kiger almost tossed it. It’s easy to see why. Though it was in regular-sized type, the letter had the tone of pharmaceutical fine print — purposefully impenetrable while also clearly designed not to alarm. The district routinely monitored water, it explained, and the detection of something called PFOA didn’t necessarily mean that it posed any health risk.
Kiger put the letter aside, but a few weeks later, after a friend was diagnosed with cancer, he went back and reread it. What exactly was this chemical, PFOA? And why was Lubeck telling him about it if it really didn’t pose any health risk? He decided to approach the water district and the West Virginia Department of Environmental Protection with these questions. But when he did, he sensed he was being summarily — and nervously — dismissed, which made the teacher only more determined to get answers.
It took months of calls and visits to government offices before someone at the local branch of the federal EPA, who had heard that the Tennant suit had something to do with PFOA, pointed Kiger toward Bilott. The lawyer realized then that the entire water district, which today serves more than 4,000 customers, had been contaminated. In 2001, Bilott filed a class-action suit on behalf of all the people in the area who were exposed to C8-contaminated water — a group that eventually included Kiger and his wife, Darlene, as well as Jeromy Darling, Ken Wamsley, and Sue Bailey among the roughly 80,000 class members who lived or worked in six public water systems near the DuPont plant in Parkersburg.
Kiger didn’t realize it then, but drafts of the notification letter, despite being on the letterhead of Lubeck Public Service District, had been reviewed by DuPont, as a former public affairs manager for DuPont named Craig Skaggs admitted when he was deposed in 2002. Had much more time elapsed before Kiger went back to the letter or before he found someone in a public office who was helpful to him, the statute of limitations that had been triggered by the letter might have run out. According to West Virginia law, two years after they had been officially notified of the contamination, anyone exposed to C8 by drinking the Lubeck water would have lost their right to sue.
VEN CONSIDERING THE remarkable persistence (and luck) of Joe Kiger, Rob Bilott, and Wilbur Tennant, the person who did the most to turn a relatively small dispute over cattle into a mega class-action suit was actually employed by DuPont. Bernard Reilly had been an in-house counsel at DuPont since 1977, and for most of that time he worked in the environmental group within the company’s legal department. Reilly was assigned to help with the Tennant case, and he was worried about the possibility of somehow letting potentially incriminating information he was working on slip out. “Each time you put pen to paper or fingers to keyboard and create a new document,” he warned his colleagues in an email he sent in September 2000, “assume you will have the plaintiffs’ lawyers as recipients since we must produce each and every such document unless it is attorney/client privilege.”
“The lawyer for the farmer finally realizes the surfactant issue. He is threatening to go to the press to embarrass us to pressure us to settle for big bucks. Fuck him.”
Yet ironically it was Reilly himself who spilled the beans about C8 when he sent personal emails about the chemical through the company’s computer system. Consequently, just as Reilly had warned, when Bilott asked for C8-related materials in discovery, he received Reilly’s emails, which made clear not just that the company was hiding something, but also that he himself had become part of the story. One of Reilly’s emails, for instance, contained the following passage: “The lawyer for the farmer finally realizes the surfactant issue. He is threatening to go to the press to embarrass us to pressure us to settle for big bucks. Fuck him.”
Reilly wrote many of his emails, often to his son, from his vacation property in Vermont between October 1998 and May 2002 and interspersed musings about home repair, Otto the family dog, and his favorite snack food (goldfish cashew and almond nutty deluxe snack mix), with candid updates on his legal efforts concerning C8, which he referred to as “the material 3M sells us that we poop to the river and into drinking water.”
Reilly’s emails made clear that he felt the company had done wrong, first by polluting and then by not addressing the problem once it became known. He even revealed that the company knew the level of contamination had exceeded its own safety limits.
Not only do we have people drinking our famous surfactant, but levels in ambient air above our guidelines, sure we have margins of safety in our number, but we should have checked this out years ago and taken steps to remedy, guess the hills on the other side of the river cause great conditions for ambient levels, the plume hits them before it can disperse more fully. Ugh.
The DuPont lawyer was referring to his employer’s “Community Exposure Guidelines,” which specified safety limits of C8 in both air and water that were meant to protect the people living near the plant. Using what they knew about the chemical’s health effects and how long it remained in human tissue, staff scientists in 1991 had set this drinking water guideline at one part per billion. A level measured above that would present a “risk that needs to be disclosed to the community,” one document explained.
Yet the company hadn’t disclosed — or remedied — the problem, even when it measured C8 above that amount. Instead, in 1991, just months after realizing that the level of C8 in Lubeck’s water had exceeded DuPont’s guideline, the company decided to use a new lab to analyze C8 levels in water.
The new lab came up with C8 levels that were, on average, much lower than the results of DuPont’s in-house lab.
Y THE TIME THE lawsuits were underway, the company decided to find a lab that would more accurately measure the chemical. In 2001, as Reilly explained to his son, it switched back “to a much better analytical method that may bring in numbers that will alarm citizens.”
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 the practice, so we have been telling the agencies results that are certainly low. Not a pretty situation, especially since we have been telling the drinking water folks not to worry, results have been under the 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.
Reilly had been fretting over the company’s responsibility for the contamination for some time. “We really should not let situations arise like this,” he wrote to his son in 1999. “We should have used a commercial landfill and let them deal with these issues.” And he also offered some hints as to why a corporation would knowingly let a toxic chemical seep into ground and water beyond its facility.
The plant tries to save money and apparently did not consider how it might look that this guy’s cows are drinking the rainwater that has percolated through our waste.
When he was deposed in June 2015, though, Reilly said he didn’t mean to suggest that DuPont should have to pay punitive damages.
Reilly, or “The Bernard,” as he signs off on occasion, apparently wasn’t privy to much of what DuPont knew about C8’s effects on humans — and, at least in 1998, didn’t think it harmed them. But he did know there was plenty of evidence that the chemical made lab animals sick. As he made clear to his son, the company was planning to conduct a primate study in 1999, together with 3M, which supplied DuPont with C8. 3M had conducted a monkey study 20 years before that produced disturbing, though not conclusive, findings.
Even before the new primate study was completed, however, Reilly clearly grasped the severity of DuPont’s legal problems. Apparently, though, he thought some of his higher-ups did not. While DuPont pressed for a trial in the Tennant case, he felt that going to trial was a bad idea and, as he wrote to his son in 1999, he took it upon himself to “describe to the plant folks why the guy who is suing us over his cattle grazing downstream of our landfill would crucify us before a jury. … Most simply do not believe how big and bad we would look.”
Preliminary results from the monkey study, released in 1999, only made DuPont look worse. The results showed that C8 caused monkeys to lose weight and made their livers increase in size. The hope had been to find a level at which there were no observable effects. But because even animals given the lowest doses of the chemical experienced enlargement of their livers, and one was so ill it had to be euthanized, no safe level was set after the study.
But DuPont clearly wasn’t ready to give up on its surfactant. Although 3M had decided to stop making C8 in May 2000, just months after the preliminary results of the monkey study were released, DuPont moved to start producing C8 in a new production facility in Fayetteville, North Carolina. Before the plant opened it issued a reassuring statement to the people in the area surrounding the facility: “DuPont has used [C8] for more than 50 years with no observed health effects in workers.” Charles Holliday, the company’s CEO at the time, testified in a sworn deposition in 2004 that after overseeing “very extensive scientific analysis” he believed the chemical was “safe in the way we use and handle it.”
N SEPTEMBER 2004, DuPont agreed to settle the class-action suit filed by Bilott’s firm and two others, which covered a class that had ballooned to 80,000 people in six water districts. The agreement was approved in early 2005 for an amount that could reach $343 million and was unusual in a number of ways. Generally, a legal settlement marks the end of a case, when attorneys and clients divvy up the cash and move on. Because the burden of proving that exposure to an unregulated chemical causes health problems is so onerous, plaintiffs who get any money in such cases may be especially inclined to let the matter drop. But the 2005 settlement of the C8 class-action lawsuit was also a beginning. Instead of just cutting checks, the agreement created a health project to collect medical information on the exposed population and determine whether exposure to C8 had actually harmed people.
At first, some doubted that the health project could enroll enough people to be useful; huge numbers of participants are usually necessary to show that a chemical causes harm. But the team of local researchers, headed by a retired physician named Paul Brooks and a former hospital administrator named Arthur Maher, threw themselves into the task. In part by offering each participant $400, they managed to interview and collect blood samples from 69,000 people who had lived or worked in the six affected water districts for at least a year.
The settlement also created a separate group called the C8 Science Panel composed of three physicians, Kyle Steenland, Tony Fletcher, and David Savitz, who all had backgrounds in epidemiology and public health and were chosen and approved by both teams of lawyers. The science panel used the blood samples and questionnaires from the health project and also conducted its own studies, which were published in peer-reviewed journals and posted on the science panel’s public website, to determine whether any diseases were linked. If they were, the agreement said, DuPont would filter the local water for as long as concentrations of C8 exceeded regulations and set aside $235 million for ongoing medical monitoring of the community. Plus, any of the class members who developed the linked diseases would be entitled to sue for personal injury. DuPont, moreover, agreed not to contest the fact that exposure to the chemical could cause the diseases.
By the time the C8 Science Panel completed its work in 2013, its members had spent eight years and around $33 million exploring the connections between C8 and human health. The panel even came up with a model that could estimate residents’ exposure levels based on where they lived and historical concentrations of C8 in air, groundwater, and the Ohio River. Linking that information to health data helped the three scientists find likely connections to six diseases: high cholesterol; a form of bowel disease called ulcerative colitis; pregnancy-induced hypertension; thyroid disease; testicular cancer; and kidney cancer.
Their results skewered DuPont’s hopes that its animal data might not apply to humans. They also flew in the face of a long-held belief about how chemicals affect people: that the dose makes the poison. That truism, generally attributed to the work of the 16th-century physician Paracelsus, has served as one of the starting points of modern toxicology. And this logic may have led DuPont scientists to conclude, or at least hope, that the small amounts of C8 people living near the plant ingested wouldn’t hurt them.
But Paracelsus hadn’t heard about endocrine disruptors, a recently discovered class of chemicals, to which C8 belongs, that interfere with the hormonal system. When graphed against the amount of chemical exposure, the health effects of endocrine disruptors often don’t take the expected form — an upward sloping line, with the lowest point on the left, where doses are lowest, and the effects steadily increasing along with the exposure levels. Instead, when plotted, the effects of endocrine disruptors can look like an upside down “V” or an upward slope with a dent in the middle, reflecting the fact that effects can, at certain levels, drop even as exposure increases.
Even though the level of C8 contamination required for a water district to become part of the class-action suit was low — just .05 ppb — the data gathered from class members showed apparent health effects. That limit had been chosen because at the time it was the lowest level that could be reliably measured.
The science panel data has since been used to link C8 with other effects beyond those six diseases, but according to the terms of the suit, the list of diseases cannot be amended. The attorneys’ clear-cut solution fell short of capturing the messy science of epidemiology. According to panel member David Savitz, a professor of epidemiology at Brown University, scientists still haven’t untangled all of the ties between C8 and disease. “It is quite possible, even likely, that some of the diseases we found no probable link for will, in time, turn out to be related to C8,” he said. Of course, as a careful scientist, Savitz knows that the contrary is true as well, because everything in science is potentially falsifiable. “But it’s also quite likely that some of the diseases for which we did declare a probable link will turn out, with improved research, to have been incorrectly judged when they are not associated with risk of those diseases. There was very little research done before the C8 Science Panel’s work, and while we extended the research considerably, it was and remains quite limited for drawing firm judgments.” It’s that permanent and irresolvable uncertainty that companies like DuPont are so adept at exploiting.
However, recent studies published in peer-reviewed journals such as Human Reproduction, Occupational and Environmental Medicine, and The Journal of Pediatrics have tied C8 to an incredible range of health effects, including ovarian cancer; prostate cancer; lymphoma; reduced fertility; arthritis; hyperactivity and altered immune responses in children; and hypotonia, or “floppiness,” in infants.
AD THE C8 HEALTH project not reached the number of people it did, or had the science panel not been as diligent about crunching all the data, epidemiologists might not have been able to recognize the elevated disease rates for what they were. In the water district with the highest level of exposure — Little Hocking, Ohio — there were eight cases of testicular cancer, a seemingly small number that is five times what would be expected in an unexposed population of that size. For kidney cancer, the rate of disease was up to two times higher than usual.
The link to high cholesterol, while clear enough to have been recognized and agreed upon by all three physicians on the science panel, also might have been missed because the study results were so nuanced. Yet in part because the study was so large, the researchers were able to show that the greater a person’s exposure to C8, the greater his or her chance of having elevated cholesterol.
Together, these diseases became part of a pattern. Considered in isolation, however, each illness is typically seen as a chance occurrence, which is what Jodie Boylen thought when she was diagnosed with kidney cancer. A lawyer who works on child neglect cases in the prosecutor’s office in Parkersburg, Boylen had been feeling exhausted before her doctor found her tumor in 2013. At that point, the link between C8 and kidney cancer had already been made by the science panel data, though she hadn’t heard about it. When she did, from a colleague who was working on the class-action case, she joined the class. Boylen also began thinking about the house she had lived in with her three children between 1989 and 1998. Not only was it in one of the affected water districts, their house was right on the shore of Lake Washington, a small body of water that was just a mile from the DuPont plant. “We drank it. We swam in that lake every day we could,” Boylen, now 53, remembered recently. “We lived in that lake in the summer.”
Boylen had surgery to remove her kidney tumor in 2013 and is hopeful that the cancer won’t return. But she still worries about her children. “They were in the water more than I was, they went to school in that district,” she said in a recent interview in her Parkersburg home. “What’s going to happen to them in a couple of years?”
Jeromy Darling, too, is now cancer-free. But 17 years after his diagnosis, the financial legacy of his ordeal is still with him. Because he was uninsured at the time of his illness, he wound up declaring bankruptcy after being hit with more than $75,000 in bills for his surgeries. “I had all the good cards, all the good interest rates. All that went away,” he said in a recent interview. “It’s embarrassing. I work forty-plus hours a week and I can’t get a credit card now.”
Darling was unable to buy a house because he couldn’t get a mortgage, so his girlfriend of 20 years bought their current home by herself. And he hasn’t married her because he didn’t want his bad credit history to rub off on her good one. The couple even changed their plans about having children together after Darling’s doctors told him his sperm count was greatly reduced due to his cancer diagnosis. “We didn’t try because you don’t want to have that disappointment,” he said. “It’s almost better to put it out of your mind.”
When they got together, each of them had already had one child. Like Boylen, Darling is focused on the children’s health and the fact that they grew up in the chemical valley, drinking the same C8-contaminated water he did.
O DATE, SOME 3,500 personal injury claims have been filed as part of the 2005 class-action settlement. The first trial, scheduled for September in Columbus, Ohio, takes up the case of Carla Bartlett, who maintains that her kidney cancer was caused by exposure to C8. Attorneys for DuPont, because of the terms of the class-action settlement, will be unable to contest the general causal connection between kidney cancer and C8 exposure, but they will almost certainly argue that other factors are more likely to be responsible. The deposition of a DuPont expert named Douglas Weed suggests a possible line of attack: that Bartlett, who lives just a few miles downriver from the DuPont plant, developed the cancer because she’s overweight. Or, perhaps, just by chance.
The role of luck — that two things often correlate just by chance — was a major point of Weed’s testimony, for which DuPont paid the former employee of the National Cancer Institute more than $100,000. During his deposition in March 2015, the doctor estimated that since leaving the government agency eight years ago he has made between $5 million and $6 million providing expert testimony to companies in such corporate defense cases.
Surely, after all that they’ve endured, Bartlett, Darling, Boylen, and the other plaintiffs would agree that sometimes bad things just happen. But their list of unfortunate — and unlikely — occurrences would no doubt include the leakage of a toxic and biologically potent chemical into their water and the subsequent contamination of their bodies, where it may have caused diseases that have forever changed their lives.
Perhaps the most remarkable and unlikely occurrence of all is not the fact that the contamination happened, or even that it turned out to be harmful, but that it was discovered. It’s easy to imagine how — without Tennant, Bilott, or Kiger; without Reilly’s revealing emails; and without the exuberance of the health project and the diligence of the science panel — DuPont’s secrets might never have emerged. Had the stars aligned that way, C8 would still be largely unknown, just one of the tens of thousands of unregulated chemicals we don’t notice as they silently pollute our world.
EDITOR’S NOTE: DuPont, asked to respond to the allegations contained in this article, declined to comment due to pending litigation.
In previous statements and court filings, however, DuPont has consistently denied that it did anything wrong or broke any laws. In settlements reached with regulatory authorities and in the class-action suit, DuPont has made clear that those agreements were compromise settlements regarding disputed claims and that the settlements did not constitute an admission of guilt or wrongdoing. Likewise, in response to the personal injury claims of Jodie Boylen, Jeromy Darling, and others, DuPont has rejected all charges of wrongdoing and maintained that their injuries were “proximately caused by acts of God and/or by intervening and/or superseding actions by others, over which DuPont had no control.” DuPont also claimed that it “neither knew, nor should have known, that any of the substances to which Plaintiff was allegedly exposed were hazardous or constituted a reasonable or foreseeable risk of physical harm by virtue of the prevailing state of the medical, scientific and/or industrial knowledge available to DuPont at all times relevant to the claims or causes of action asserted by Plaintiff.”
When contacted by The Intercept for comment, 3M provided the following statement. “In more than 30 years of medical surveillance we have observed no adverse health effects in our employees resulting from their exposure to PFOS or PFOA. This is very important since the level of exposure in the general population is much lower than that of production employees who worked directly with these materials,” said Dr. Carol Ley, 3M vice president and corporate medical director. “3M believes the chemical compounds in question present no harm to human health at levels they are typically found in the environment or in human blood.”
This article was reported in partnership with The Investigative Fund at The Nation Institute.
Alleen Brown, Hannah Gold, and Sheelagh McNeill contributed to this story.
In this series, Sharon Lerner exposes DuPont’s multi-decade cover-up of the severe harms to health associated with a chemical known as PFOA, or C8, and associated compounds such as PFOS and GenX. Read our complete coverage of PFAS pollution.
Internal documents reveal that DuPont long suspected C8 was harmful, yet continued to put the company’s workers and the public at risk.
KEN WAMSLEY SOMETIMES DREAMS that he’s playing softball again. He’ll be at center field, just like when he played slow pitch back in his teens, or pounding the ball over the fence as the crowd goes wild. Other times, he’s somehow inexplicably back at work in the lab. Wamsley calls them nightmares, these stories that play out in his sleep, but really the only scary part is the end, when “I wake up and I have no rectum anymore.”
Wamsley is 73. After developing rectal cancer and having surgery to treat it in 2002, he walks slowly and gets up gingerly from the bench in his small backyard. His voice, which has a gentle Appalachian lilt, is still animated, though, especially when he talks about his happier days. There were many. While Wamsley knew plenty of people in Parkersburg, West Virginia, who struggled to stay employed, he made an enviable wage for almost four decades at the DuPont plant here. The company was generous, helping him pay for college courses and training him to become a lab analyst in the Teflon division.
He enjoyed the work, particularly the precision and care it required. For years, he measured levels of a chemical called C8 in various products. The chemical “was everywhere,” as Wamsley remembers it, bubbling out of the glass flasks he used to transport it, wafting into a smelly vapor that formed when he heated it. A fine powder, possibly C8, dusted the laboratory drawers and floated in the hazy lab air.
At the time, Wamsley and his coworkers weren’t particularly concerned about the strange stuff. “We never thought about it, never worried about it,” he said recently. He believed it was harmless, “like a soap. Wash your hands [with it], your face, take a bath.”
Today Wamsley suffers from ulcerative colitis, a bowel condition that causes him sudden bouts of diarrhea. The disease also can — and his case, did — lead to rectal cancer. Between the surgery, which left him reliant on plastic pouches that collect his waste outside his body and have to be changed regularly, and his ongoing digestive problems, Wamsley finds it difficult to be away from his home for long.
Sometimes, between napping or watching baseball on TV, Wamsley’s mind drifts back to his DuPont days and he wonders not just about the dust that coated his old workplace but also about his bosses who offered their casual assurances about the chemical years ago.
“Who knew?” he asked. “When did they know? Did they lie?”
UNTIL RECENTLY, FEW PEOPLE had heard much about chemicals like C8. One of tens of thousands of unregulated industrial chemicals, perfluorooctanoic acid, or PFOA — also called C8 because of the eight-carbon chain that makes up its chemical backbone — had gone unnoticed for most of its eight or so decades on earth, even as it helped cement the success of one of the world’s largest corporations.
Several blockbuster discoveries, including nylon, Lycra, and Tyvek, helped transform the E. I. du Pont de Nemours company from a 19th-century gunpowder mill into “one of the most successful and sustained industrial enterprises in the world,” as its corporate website puts it. Indeed, in 2014, the company reaped more than $95 million in sales each day. Perhaps no product is as responsible for its dominance as Teflon, which was introduced in 1946, and for more than 60 years C8 was an essential ingredient of Teflon.
Called a “surfactant” because it reduces the surface tension of water, the slippery, stable compound was eventually used in hundreds of products, including Gore-Tex and other waterproof clothing; coatings for eye glasses and tennis rackets; stain-proof coatings for carpets and furniture; fire-fighting foam; fast food wrappers; microwave popcorn bags; bicycle lubricants; satellite components; ski wax; communications cables; and pizza boxes.
Concerns about the safety of Teflon, C8, and other long-chain perfluorinated chemicals first came to wide public attention more than a decade ago, but the story of DuPont’s long involvement with C8 has never been fully told. Over the past 15 years, as lawyers have been waging an epic legal battle — culminating as the first of approximately 3,500 personal injury claims comes to trial in September — a long trail of documents has emerged that casts new light on C8, DuPont, and the fitful attempts of the Environmental Protection Agency to deal with a threat to public health.
This story is based on many of those documents, which until they were entered into evidence for these trials had been hidden away in DuPont’s files. Among them are write-ups of experiments on rats, dogs, and rabbits showing that C8 was associated with a wide range of health problems that sometimes killed the lab animals. Many thousands of pages of expert testimony and depositions have been prepared by attorneys for the plaintiffs. And through the process of legal discovery they have uncovered hundreds of internal communications revealing that DuPont employees for many years suspected that C8 was harmful and yet continued to use it, putting the company’s workers and the people who lived near its plants at risk.
In 2011 and 2012, after seven years of research, the science panel found that C8 was “more likely than not” linked to ulcerative colitis — Wamsley’s condition — as well as to high cholesterol; pregnancy-induced hypertension; thyroid disease; testicular cancer; and kidney cancer. The scientists’ findings, published in more than three dozen peer-reviewed articles, were striking, because the chemical’s effects were so widespread throughout the body and because even very low exposure levels were associated with health effects.
We know, too, from internal DuPont documents that emerged through the lawsuit, that Wamsley’s fears of being lied to are well-founded. DuPont scientists had closely studied the chemical for decades and through their own research knew about some of the dangers it posed. Yet rather than inform workers, people living near the plant, the general public, or government agencies responsible for regulating chemicals, DuPont repeatedly kept its knowledge secret.
Another revelation about C8 makes all of this more disturbing and gives the upcoming trials, the first of which will be held this fall in Columbus, Ohio, global significance: This deadly chemical that DuPont continued to use well after it knew it was linked to health problems is now practically everywhere.
A man-made compound that didn’t exist a century ago, C8 is in the blood of 99.7 percent of Americans, according to a 2007 analysis of data from the Centers for Disease Control, as well as in newborn human babies, breast milk, and umbilical cord blood. A growing group of scientists have been tracking the chemical’s spread through the environment, documenting its presence in a wide range of wildlife, including Loggerhead sea turtles, bottlenose dolphins, harbor seals, polar bears, caribou, walruses, bald eagles, lions, tigers, and arctic birds. Although DuPont no longer uses C8, fully removing the chemical from all the bodies of water and bloodstreams it pollutes is now impossible. And, because it is so chemically stable — in fact, as far as scientists can determine, it never breaks down — C8 is expected to remain on the planet well after humans are gone from it.
In some ways, C8 already is the tobacco of the chemical industry — a substance whose health effects were the subject of a decades-long corporate cover-up.
Eight companies are responsible for C8 contamination in the U.S. (In addition to DuPont, the leader by far in terms of both use and emissions, seven others had a role, including 3M, which produced C8 and sold it to DuPont for years.) If these polluters were ever forced to clean up the chemical, which has been detected by the EPA 716 times across water systems in 29 states, and in some areas may be present at dangerous levels, the costs could be astronomical — and C8 cases could enter the storied realm of tobacco litigation, forever changing how the public thinks about these products and how a powerful industry does business.
In some ways, C8 already is the tobacco of the chemical industry — a substance whose health effects were the subject of a decades-long corporate cover-up. As with tobacco, public health organizations have taken up the cause — and numerous reporters have dived into the mammoth story. Like the tobacco litigation, the lawsuits around C8 also involve huge amounts of money. And, like tobacco, C8 is a symbol of how difficult it is to hold companies responsible, even when mounting scientific evidence links their products to cancer and other diseases.
There is at least one sense in which the tobacco analogy fails. Exposure to tobacco usually contains an element of volition, and most people who smoked it in the past half century knew about some of the risks involved. But the vast majority of Americans — along with most people on the planet — now have C8 in their bodies. And we’ve had no choice in the matter.
FOR ITS FIRST HUNDRED YEARS, DuPont mostly made explosives, which, while hazardous, were at least well understood. But by the 1930s, the company had expanded into new products that brought new mysterious health problems. Leaded gasoline, which DuPont made in its New Jersey plant, for instance, wound up causing madness and violent deaths and life-long institutionalization of workers. And certain rubber and industrial chemicals inexplicably turned the skin of exposed workers blue.
Perhaps most troubling, at least to a DuPont doctor named George Gehrmann, was a number of bladder cancers that had recently begun to crop up among many dye workers. Worried over “the tendency to believe [chemicals] are harmless until proven otherwise,” Gehrmann pushed DuPont to create Haskell Laboratories in 1935. Haskell was one of the first in-house toxicology facilities and its first project was to address the bladder cancers. But the inherent problems of assigning staff scientists to study a company’s own employees and products became clear from the outset.
One of Haskell’s first employees, a pathologist named Wilhelm Hueper, helped crack the bladder cancer case by developing a model of how the dye chemicals led to disease. But the company forbade him from publishing some of his research and, according to epidemiologist and public health scholar David Michaels, fired him in 1937 before going on to use the chemicals in question for decades.
DuPont elected not to disclose its findings to regulators.
C8 would prove to be arguably even more ethically and scientifically challenging for Haskell. From the beginning, DuPont scientists approached the chemical’s potential dangers with rigor. In 1954, the very year a French engineer first applied the slick coating to a frying pan, a DuPont employee named R. A. Dickison noted that he had received an inquiry regarding C8’s “possible toxicity.” In 1961, just seven years later, in-house researchers already had the short answer to Dickison’s question: C8 was indeed toxic and should be “handled with extreme care,” according to a report filed by plaintiffs. By the next year experiments had honed these broad concerns into clear, bright red flags that pointed to specific organs: C8 exposure was linked to the enlargement of rats’ testes, adrenal glands, and kidneys. In 1965, 14 employees, including Haskell’s then-director, John Zapp, received a memo describing preliminary studies that showed that even low doses of a related surfactant could increase the size of rats’ livers, a classic response to exposure to a poison.
The company even conducted a human C8 experiment, a deposition revealed. In 1962, DuPont scientists asked volunteers to smoke cigarettes laced with the chemical and observed that “Nine out of ten people in the highest-dosed group were noticeably ill for an average of nine hours with flu-like symptoms that included chills, backache, fever, and coughing.”
Because of its toxicity, C8 disposal presented a problem. In the early 1960s, the company buried about 200 drums of the chemical on the banks of the Ohio River near the plant. An internal DuPont document from 1975 about “Teflon Waste Disposal” detailed how the company began packing the waste in drums, shipping the drums on barges out to sea, and dumping them into the ocean, adding stones to make the drums sink. Though the practice resulted in a moment of unfavorable publicity when a fisherman caught one of the drums in his net, no one outside the company realized the danger the chemical presented. At some point before 1965, ocean dumping ceased, and DuPont began disposing of its Teflon waste in landfills instead.
IN 1978, BRUCE KARRH, DuPont’s corporate medical director, was outspoken about the company’s duty “to discover and reveal the unvarnished facts about health hazards,” as he wrote in the Bulletin of the New York Academy of Medicine at the time. When deposed in 2004, Karrh emphasized that DuPont’s internal health and safety rules often went further than the government’s and that the company’s policy was to comply with either laws or the company’s internal health and safety standards, “whichever was the more strict.” In his 1978 article, Karrh also insisted that a company “should be candid, and lay all the facts on the table. This is the only responsible and ethical way to go.”
Yet DuPont only laid out some of its facts. In 1978, for instance, DuPont alerted workers to the results of a study done by 3M showing that its employees were accumulating C8 in their blood. Later that year, Karrh and his colleagues began reviewing employee medical records and measuring the level of C8 in the blood of the company’s own workers in Parkersburg, as well as at another DuPont plant in Deepwater, New Jersey, where the company had been using C8 and related chemicals since the 1950s. They found that exposed workers at the New Jersey plant had increased rates of endocrine disorders. Another notable pattern was that, like dogs and rats, people employed at the DuPont plants more frequently had abnormal liver function tests after C8 exposure.
DuPont elected not to disclose its findings to regulators. The reasoning, according to Karrh, was that the abnormal test results weren’t proven to be adverse health effects related to C8. When asked about the decision in deposition, Karrh said that “at that point in time, we saw no substantial risk, so therefore we saw no obligation to report.”
Not long after the decision was made not to alert the EPA, in 1981, another study of DuPont workers by a staff epidemiologist declared that liver test data collected in Parkersburg lacked “conclusive evidence of an occupationally related health problem among workers exposed to C-8.” Yet the research might have reasonably led to more testing. An assistant medical director named Vann Brewster suggested that an early draft of the study be edited to state that DuPont should conduct further liver test monitoring. Years later, a proposal for a follow-up study was rejected.
If the health effects on humans could still be debated in 1979, C8’s effects on animals continued to be apparent. A report prepared for plaintiffs stated that by then, DuPont was aware of studies showing that exposed beagles had abnormal enzyme levels “indicative of cellular damage.” Given enough of the stuff, the dogs died.
DuPont employees knew in 1979 about a recent 3M study showing that some rhesus monkeys also died when exposed to C8, according to documents submitted by plaintiffs. Scientists divided the primates into five groups and exposed them to different amounts of C8 over 90 days. Those given the highest dose all died within five weeks. More notable was that three of the monkeys who received less than half that amount also died, their faces and gums growing pale and their eyes swelling before they wasted away. Some of the monkeys given the lower dose began losing weight in the first week it was administered. C8 also appeared to affect some monkeys’ kidneys.
Of course, enough of anything can be deadly. Even a certain amount of table salt would kill a lab animal, a DuPont employee named C. E. Steiner noted in a confidential 1980 communications meeting. For C8, the lethal oral dose was listed as one ounce per 150 pounds, although the document stated that the chemical was most toxic when inhaled. The harder question was to determine a maximum safe dosage. How much could an animal — or a person — be exposed to without having any effects at all? The 1965 DuPont study of rats suggested that even a single dose of a similar surfactant could have a prolonged effect. Nearly two months after being exposed, the rats’ livers were still three times larger than normal.
Steiner declared that there was no “conclusive evidence” that C8 harmed workers, yet he also stated that “continued exposure is not tolerable.” Because C8 accumulated in bodies, the potential for harm was there, and Steiner predicted the company would continue medical and toxicological monitoring and described plans to supply workers who were directly exposed to the chemical with protective clothing.
Two years after DuPont learned of the monkey study, in 1981, 3M shared the results of another study it had done, this one on pregnant rats, whose unborn pups were more likely to have eye defects after they were exposed to C8. The EPA was also informed of the results. After 3M’s rat study came out, DuPont transferred all women out of work assignments with potential for exposure to C8. DuPont doctors then began tracking a small group of women who had been exposed to C8 and had recently been pregnant. If even one in five women gave birth to children who had craniofacial deformities, a DuPont epidemiologist named Fayerweather warned, the results should be considered significant enough to suggest that C8 exposure caused the problems.
As it turned out, at least one of eight babies born to women who worked in the Teflon division did have birth defects. A little boy named Bucky Bailey, whose mother, Sue, had worked in Teflon early in her pregnancy, was born with tear duct deformities, only one nostril, an eyelid that started down by his nose, and a condition known as “keyhole pupil,” which looked like a tear in his iris. Another child, who was two years old when the rat study was published in 1981, had an “unconfirmed eye and tear duct defect,” according to a DuPont document that was marked confidential.
Like Wamsley, Sue Bailey, one of the plaintiffs whose personal injury suits are scheduled to come to trial in the fall, remembers having plenty of contact with C8. When she started at DuPont in 1978, she worked first in the Nylon division and then in Lucite, she told me in an interview. But in 1980, when she was in the first trimester of her pregnancy with Bucky, she moved to Teflon, where she often sat watch over a large pipe that periodically filled up with liquid, which she had to pump to a pond in back of the plant. Occasionally some of the bubbly stuff would overflow from a nearby holding tank, and her supervisor taught her how to squeegee the excess into a drain.
Soon after Bucky was born, Bailey received a call from a DuPont doctor. “I thought it was just a compassion call, you know: can we do anything or do you need anything?” Bailey recalled. “Shoot. I should have known better.” In fact, the doctor didn’t express his sympathies, Bailey said, and instead asked her whether her child had any birth defects, explaining that it was standard to record such problems in employees’ newborns.
While Bailey was still on maternity leave, she learned that the company was removing its female workers from the Teflon division. She remembers the moment — and that it made her feel deceived. “It sure was a big eye-opener,” said Bailey, who still lives in West Virginia but left DuPont a few years after Bucky’s birth.
THE FEDERAL TOXIC SUBSTANCES Control Act requires companies that work with chemicals to report to the Environmental Protection Agency any evidence they find that shows or even suggests that they are harmful. In keeping with this requirement, 3M submitted its rat study to the EPA, and later DuPont scientists wound up discussing the study with the federal agency, saying they believed it was flawed. DuPont scientists neglected to inform the EPA about what they had found in tracking their own workers.
When DuPont began transferring women workers out of Teflon, the company did send out a flier alerting them to the results of the 3M study. When Sue Bailey saw the notice on the bench of the locker room and read about the rat study, she immediately thought of Bucky.
Yet when she went in to request a blood test, the results of which the doctor carefully noted to the thousandth decimal point, and asked if there might be a connection between Bucky’s birth defects and the rat study she had read about, Bailey recalls that Dr. Younger Lovelace Power, the plant doctor, said no. According to Karrh’s deposition, he told Karrh the same. “We went back to him and asked him to follow up on it, and he did, and came back saying that he did not think it was related.”
“I said, ‘I was in Teflon. Is this what happened to my baby?’” Bailey remembered. “And he said, ‘No, no.’” Power also told Bailey that the company had no record of her having worked in Teflon. Shortly afterward, she considered suing DuPont and even contacted a lawyer in Parkersburg, who she says wasn’t interested in taking her case against the town’s biggest employer. When contacted for his response to Bailey’s recollections, Power declined to comment.
By testing the blood of female Teflon workers who had given birth, DuPont researchers, who then reported their findings to Karrh, documented for the first time that C8 had moved across the human placenta.
In 2005, when the EPA fined the company for withholding this information, attorneys for DuPont argued that because the agency already had evidence of the connection between C8 and birth defects in rats, the evidence it had withheld was “merely confirmatory” and not of great significance, according to the agency’s consent agreement on the matter.
Ken Wamsley also remembers when his supervisor told him they had taken female workers out of Teflon. “I said, ‘Why’d you send all the women home?’ He said, ‘Well, we’re afraid, we think maybe it hurts the pregnancies in some of the women,’” recalled Wamsley. “They said, ‘Ken, it won’t hurt the men.’”
WHILE SOME DUPONT SCIENTISTS were carefully studying the chemical’s effect on the body, others were quietly tracking its steady spread into the water surrounding the Parkersburg plant. After it ceased dumping C8 in the ocean, DuPont apparently relied on disposal in unlined landfills and ponds, as well as putting C8 into the air through smokestacks and pouring waste water containing it directly into the Ohio River, as detailed in a 2007 study by Dennis Paustenbach published in the Journal of Toxicology and Environmental Health.
By 1982, Karrh had become worried about the possibility of “current or future exposure of members of the local community from emissions leaving the plant’s perimeter,” as he explained in a letter to a colleague in the plastics department. After noting that C8 stays in the blood for a long time — and might be passed to others through blood donations — and that the company had only limited knowledge of its long-term effects, Karrh recommended that “available practical steps be taken to reduce that exposure.”
To get a sense of exactly how extensive that exposure was, in March 1984 an employee was sent out to collect samples, according to a memo by a DuPont staffer named Doughty. The employee went into general stores, markets, and gas stations, in local communities as far as 79 miles downriver from the Parkersburg plant, asking to fill plastic jugs with water, which he then took back for testing. The results of those tests confirmed C8’s presence at elevated levels.
Faced with the evidence that C8 had now spread far beyond the Parkersburg plant, internal documents show, DuPont was at a crossroads. Could the company find a way to reduce emissions? Should it switch to a new surfactant? Or stop using the chemical altogether? In May 1984, DuPont convened a meeting of 10 of its corporate business managers at the company’s headquarters in Wilmington, Delaware, to tackle some of these questions. Results from an engineering study the group reviewed that day described two methods for reducing C8 emissions, including thermal destruction and a scrubbing system.
“None of the options developed are … economically attractive and would essentially put the long term viability of this business segment on the line,” someone named J. A. Schmid summarized in notes from the meeting, which are marked “personal and confidential.”
The executives considered C8 from the perspective of various divisions of the company, including the medical and legal departments, which, they predicted, “will likely take a position of total elimination,” according to Schmid’s summary. Yet the group nevertheless decided that “corporate image and corporate liability” — rather than health concerns or fears about suits — would drive their decisions about the chemical. Also, as Schmid noted, “There was a consensus that C-8, based on all the information available from within the company and 3M, does not pose a health hazard at low level chronic exposure.”
Though they already knew that it had been detected in two local drinking water systems and that moving ahead would only increase emissions, DuPont decided to keep using C8.
A DuPont lawyer referred to C8 as “the material 3M sells us that we poop to the river and into drinking water along the Ohio River.”
In fact, from that point on, DuPont increased its use and emissions of the chemical, according to Paustenbach’s 2007 study, which was based on the company’s purchasing records, interviews with employees, and historical emissions from the Parkersburg plant. According to the study, the plant put an estimated 19,000 pounds of C8 into the air in 1984, the year of the meeting. By 1999, the peak of its air emissions, the West Virginia plant put some 87,000 pounds of C8 into local air and water. That same year, the company emitted more than 25,000 pounds of the chemical into the air and water around its New Jersey plant, as noted in a confidential presentation DuPont made to the New Jersey Department of Environmental Protection in 2006. All told, according to Paustenbach’s estimate, between 1951 and 2003 the West Virginia plant eventually spread nearly 2.5 million pounds of the chemical into the area around Parkersburg.
Essentially, DuPont decided to double-down on C8, betting that somewhere down the line the company would somehow be able to “eliminate all C8 emissions in a way yet to be developed that would not economically penalize the bussiness [sic],” as Schmid wrote in his 1984 meeting notes. The executives, while conscious of probable future liability, did not act with great urgency about the potential legal predicament they faced. If they did decide to reduce emissions or stop using the chemical altogether, they still couldn’t undo the years of damage already done. As the meeting summary noted, “We are already liable for the past 32 years of operation.”
When contacted by The Intercept for comment, 3M provided the following statement. “In more than 30 years of medical surveillance we have observed no adverse health effects in our employees resulting from their exposure to PFOS or PFOA. This is very important since the level of exposure in the general population is much lower than that of production employees who worked directly with these materials,” said Dr. Carol Ley, 3M vice president and corporate medical director. “3M believes the chemical compounds in question present no harm to human health at levels they are typically found in the environment or in human blood.” In May 2000, 3M announced that it would phase out its use of C8.
DUPONT CONFRONTED ITS potential liability in part by rehearsing the media strategy it would take if word of the contamination somehow got out. In the weeks after the 1984 meeting, an internal public relations team drafted the first of several “standby press releases.” The guide for dealing with the imagined press offered assurances that only “small quantities of [C8] are discharged to the Ohio River” and that “these extremely low levels would have no adverse affects.” When a hypothetical reporter, who presumably learned that DuPont was choosing not to invest in a system to reduce emissions, asks whether the company’s decision was based on money, the document advises answering “No.”
The company went on to draft these just-in-case press releases at several difficult junctures, and even the hypothetical scenarios they play out can be uncomfortable. In one, drafted in 1989, after DuPont had bought local fields that contained wells it knew to be contaminated, the company spokesperson in the script winds up in an outright lie. Although internal documents list “the interests of protecting our plant site from public liability” as one of the reasons for the purchase, when the hypothetical reporter asks whether DuPont purchased the land because of the water contamination, the suggested answer listed in the 1989 standby release was to deny this and to state instead that “it made good business sense to do so.”
DuPont drafted another contingency press release in 1991, after it discovered that C8 was present in a landfill near the plant, which it estimated could produce an exit stream containing 100 times its internal maximum safety level. Fears about the possible health consequences were enough to spur the company to once again rehearse its media strategy. (“What would be the effect of cows drinking water from the … stream?” the agenda from a C8 review meeting that year asked.) Yet other recent and disturbing discoveries had also provoked corporate anxieties.
In 1989, DuPont employees found an elevated number of leukemia deaths at the West Virginia plant. Several months later, they measured an unexpectedly high number of kidney cancers among male workers. Both elevations were plant-wide and not specific to workers who handled C8. But, the following year, the scientists clarified how C8 might cause at least one form of cancer in humans. In 1991, it became clear not just that C8-exposed rats had elevated chances of developing testicular tumors — something 3M had also recently observed — but, worse still, that the mechanism by which they developed the tumors could apply to humans.
Nevertheless, the 1991 draft press release said that “DuPont and 3M studies show that C-8 has no known toxic or ill health effects in humans at the concentrations detected” and included this reassuring note: “As for most chemicals, exposure limits for C-8 have been established with sufficient safety factors to ensure there is no health concern.”
Yet even this prettified version of reality in Parkersburg never saw the light of day. The standby releases were only to be used to guide the company’s media response if its bad news somehow leaked to the public. It would be almost 20 years after the first standby release was drafted before anyone outside the company understood the dangers of the chemical and how far it had spread beyond the plant.
IN THE MEANTIME, fears about liability mounted along with the bad news. In 1991, DuPont researchers recommended another study of workers’ liver enzymes to follow up on the one that showed elevated levels more than a decade before. But Karrh and others decided against the project, which was predicted to cost $45,000. When asked about it in a deposition, Karrh characterized the decision as the choice to focus resources on other worthy scientific projects. But notes taken on a discussion of whether or not to carry out the proposed study included the bullet point “liability” and the hand-written suggestion: “Do the study after we are sued.”
In a 2004 deposition, Karrh denied that the notes were his and said that the company would never have endorsed such a comment. Although notes from the 1991 meeting describe the presence of someone named “Kahrr,” Karrh said that he had no idea who that person was and didn’t recall being present for the meeting. When contacted by The Intercept, Karrh declined to comment.
As the secrets mounted so too did anxiety about C8, which DuPont was by now using and emitting not just in West Virginia and New Jersey, but also in its facilities in Japan and the Netherlands. By the time a small committee drafted a “white paper” about C8 strategies and plans in 1994, the subject was considered so sensitive that each copy was numbered and tracked. The top-secret document, which was distributed to high-level DuPont employees around the world, discussed the need to “evaluate replacement of C-8 with other more environmentally safe materials” and presented evidence of toxicity, including a paper published in the Journal of Occupational Medicine that found elevated levels of prostate cancer death rates for employees who worked in jobs where they were exposed to C8. After they reviewed drafts, recipients were asked to return them for destruction.
In 1999, when a farmer suspected that DuPont had poisoned his cows (after they drank from the very C8-polluted stream DuPont employees had worried over in their draft press release eight years earlier) and filed a lawsuit seeking damages, the truth finally began to seep out. The next year, an in-house DuPont attorney named Bernard Reilly helped open an internal workshop on C8 by giving “a short summary of the right things to document and not to document.” But Reilly — whose own emails about C8 would later fuel the legal battle that eventually included thousands of people, including Ken Wamsley and Sue Bailey — didn’t heed his own advice.
Reilly clearly made the wrong choice when he used the company’s computers to write about C8, which he revealingly called the “the material 3M sells us that we poop to the river and into drinking water along the Ohio River.” But the DuPont attorney was right about two things: If C8 was proven to be harmful, Reilly predicted in 2000, “we are really in the soup because essentially everyone is exposed one way or another.” Also, as he noted in another prescient email sent 15 years ago: “This will be an interesting saga before it’s thru.”
EDITORS NOTE: DuPont, asked to respond to the allegations contained in this article, declined to comment due to pending litigation.
In previous statements and court filings, however, DuPont has consistently denied that it did anything wrong or broke any laws. In settlements reached with regulatory authorities and in a class-action suit, DuPont has made clear that those agreements were compromise settlements regarding disputed claims and that the settlements did not constitute an admission of guilt or wrongdoing. Likewise, in response to the personal injury claims of Ken Wamsley, Sue Bailey, and others, DuPont has rejected all charges of wrongdoing and maintained that their injuries were “proximately caused by acts of God and/or by intervening and/or superseding actions by others, over which DuPont had no control.” DuPont also claimed that it “neither knew, nor should have known, that any of the substances to which Plaintiff was allegedly exposed were hazardous or constituted a reasonable or foreseeable risk of physical harm by virtue of the prevailing state of the medical, scientific and/or industrial knowledge available to DuPont at all times relevant to the claims or causes of action asserted by Plaintiff.”
This article was reported in partnership with The Investigative Fund at The Nation Institute.
Alleen Brown, Hannah Gold, and Sheelagh McNeill contributed to this story.
In this series, Sharon Lerner exposes DuPont’s multi-decade cover-up of the severe harms to health associated with a chemical known as PFOA, or C8, and associated compounds such as PFOS and GenX. Read our complete coverage of PFAS pollution.