Water Contamination in Parkersburg, WV

The chemical site near Parkersburg, WV, source of the waste at the center of the DuPont class-action lawsuit. Source: The New York Times

This story begins in October 1996 on Wilbur Earl Tennant’s farm outside of Parkersburg, WV, a town of 30,000 people located across the Ohio River from Ohio. For decades, Earl raised beef cattle on his 300-acre spread. For the last two years, he noticed with alarm that his cows had been dying off. It would start with diarrhea and foaming at the mouth, weight loss regardless of how much they ate, their teeth turning black, and their dispositions changing from friendly to ornery, even charging him when he tried to milk them.

He called veterinarians, but once they found out that DuPont was involved, they refused to come. So, he started videotaping what was happening and even did an autopsy on one of them himself, discovering tumors and internal organs that had turned green. Seeing no other obvious cause, Earl blamed it on the Dry Run Creek, a body of water that ran through his farm, which served as drinking water for his cattle. The creek was full of froth and had turned olive green in color. Earl started calling West Virginia state agencies, the EPA, and DuPont, since the creek ran through Dupont’s new landfill. No one took an interest.

Earl’s brother Jim had sold a 66-acre plot of land to DuPont, which the company assured him would be used as part of a non-hazardous landfill composed of paper products, scrap metal, plastic waste, and glass. Earl was skeptical and believed that Dupont had dumped toxic waste into the stream and blamed the company for killing off his cattle. He tried to hire a local lawyer, but none were willing to sue a large company like DuPont, which not only had the goodwill of most of the residents of Parkersburg, with close to 2000 of them being employed by the company, but also with the resources to overwhelm the personal injury lawyers.

Earl was angry and at wit’s end when a friend of his family put him in touch with Robert Bilott, a corporate lawyer working for the firm Taft, Stettinius & Hollister LLC in Cincinnati. Rob Bilott’s grandmother had lived near mutual friends of Earl’s. Taft’s clients were mostly corporations seeking legal help in defending themselves from government regulations and plaintiff suits. Rob Bilott and the other lawyers at Taft had provided legal counsel to corporations defending themselves against environmental issues, and Bilott himself had never filed any action in support of a plaintiff. But, given Bilott’s family connection to Earl’s friends and, after having made a trip to the Tennant farm and viewing the videos, Bilott agreed to take on the case. Thus, began one of the more notorious corporate cases in American legal history, pitting a 33-year-old lawyer with a degree from Ohio State who had never before represented a plaintiff, against a corporate behemoth that was eventually charged with knowingly contaminating the drinking water of 70,000 people, causing thousands of them to contract potentially lethal diseases, including kidney cancer.

Background

In 1948, E. I. du Pont de Nemours and Company (DuPont) built a major chemical plant,

The Washington Works, in Parkersburg, WV. At its height, 2000 employees worked at the plant, and DuPont became an integral and very popular part of the community, contributing to the arts, supporting STEM programs in local schools, taking initiatives in protecting the environment, and paying high wages to the town’s people employed at their plant. Washington Works is located in a bucolic section of Parkersburg overlooking the Ohio River. In 1951, DuPont’s chemists developed Teflon, importing the basic chemical component, a white powder called PFOA, from the 3M Corporation, which formulated it in 1938. DuPont eventually ceased production of Teflon in Parkersburg in July 2015, when it spun off its Parkersburg chemical division to Chemours. Before that, DuPont was, at its height, earning revenue of $1 billion per year in revenue from the sale of Teflon, used mostly for making non-stick cookware.

From 1951, when DuPont started using PFOA to manufacture Teflon, through 1960, there are no records of toxicology studies of PFAS (PFOA and PFOS are just two of thousands of PFAS compounds) – the federal government didn’t require these tests for new chemicals. However, in 1961, DuPont scientists studied rats and rabbits and found probable toxicity. From that date on, both DuPont and 3M ran toxicity tests that always reached the same conclusions, that PFOA and PFOS were potentially toxic chemicals that could and did cause injury and disease to animals and humans, and destruction to the environment by discharging its waste into the water supply. However, DuPont never released this information, neither to the public, to their workers, nor to the EPA, which they were required by law to do. In fact, using the Toxic Substance Control Act (TSCA) to protect their trade secrets, no one outside of DuPont and 3M even knew that PFOA was the primary substance in Teflon. This is not surprising given the fact that DuPont helped write the TSCA bill.

After filing his lawsuit in the summer of 1999, Bilott was told by DuPont that they had already set up a “Cattle Team” to study the health of Tennant’s cattle and the cause of their illness and demise. They were had been working on the project for months and would soon have an answer. The Team included three veterinarians appointed by DuPont and three veterinarians appointed by the EPA.

When the Cattle Team completed their inquiry and sent a copy of their report to Bilott in January 2000, it said that There was no evidence of toxicity associated with chemical contamination of the environment”. [1] Instead, they blamed the deaths of all 150 cattle on poor animal husbandry on the part of the farmer, who should hire consultants to educate him in raising cattle. When Bilott highlighted the report for Earl Tennant, a cattleman with decades of experience, Tennant accused DuPont and the federal government of working together to get him “to shut up and go away”.

How to dispose of waste products from a manufacturing process is a concern to any company, but especially when dealing with potentially hazardous substances. And as DuPont’s production increased so did the sludge. First, they piped the waste directly into the Ohio River. Then they filled up drums of waste and dumped the drums into the Ohio River. When they were caught doing that, they dumped the drums into the ocean. Finally, when the Marine Protection Act was passed by Congress in 1972 forbidding ocean dumping, DuPont built large open-air pits on its Washington Works property to contain the sludge. But when Dupont started to run out of space on its own property, it began purchasing surrounding property, much of it from farmers, in order to build a large landfill. They named it the Dry Run Landfill since the creek ran through it. Eventually, Dupont bought enough land to form a large valley, including Jim Tennant’s 66 acres, and in 1984 started dumping 10 to 14 trucksful of sludge a day. What DuPont didn’t realize, or what perhaps they did realize but decided to ignore, was the fact that the sludge’s liquid waste would eventually seep into local waterways that fed the Ohio River, as well as into Dry Run Creek.

What Did DuPont Know and When Did They Know It?

DuPont started buying PFOA from 3M in 1951. 3M had to dispose of its waste from PFOA manufacturing, and they explicitly told DuPont, which processed the PFOA to make Teflon, to dispose of the PFOA waste either by incineration or in special chemical waste sites, but not in common landfills. Because there haven’t been any lawsuits against 3M, researchers never had the opportunity to delve into their research files. However, we are aware of the 1961 DuPont study on rats and rabbits as well as a subsequent study by 3M that showed that workers retain PFOA in their bloodstreams, about which 3M informed DuPont. At minimum, DuPont was aware that PFOA was a potentially toxic substance and kept silent about it.

• Even earlier than the 1960s, Dupont was aware that something was awry with PFOA. In 1954, they warned workers at the Washington Works plant “to avoid excessive exposure of the skin” to PFOA and “not to inhale the dust or fumes” of PFOA”.
• In 1962, the year that Teflon was approved for cookware, DuPont found in a rat study that “cumulative liver, kidney, and pancreatic changes can be induced by relatively low doses of PFOA”, a strong indication of toxicity.
• In 1965, DuPont found toxic liver damage in dogs.
• In 1978, 3M told DuPont that they found PFOA in their workers’ blood. At the same time, DuPont gave high and low doses of PFOA to monkeys finding that all of those getting the high dose died, and even the monkeys who got the lowest dose showed evidence of toxicity.
• In 1979, DuPont confirmed that PFOA was biopersistent, that is, once it entered the body, its strong carbon-fluorine molecular bond broke down very slowly.
• The following year, DuPont admitted that PFOA was also bioaccumulative, that is, since it was biopersistant, even trace amounts could build up over time and circulate through the blood causing damage. It takes four years to reduce the amount of PFOA in one’s body by half[2], being eliminated through urine. However, this assumes that no PFOA is added to the body by drinking water or breathing fumes that are contaminated with the chemical.
• In 1981, a 3M study showed birth defects in unborn rats that were fed PFOA. 3M shared the results with DuPont, which led the company to remove all female employees from Teflon-related jobs.
• In 1988, DuPont found testicular cancer in a rat study and DuPont scientists classified PFOA as a confirmed animal carcinogen and possibly a human one as well. Although this information was not sent to the EPA, as required by law, the DuPont scientists set the safe exposure level to humans at 1 part per billion (PPB), equivalent to one drop of water in an Olympic-sized swimming pool.
• In 1993, DuPont scientists completed a 2-year rat study, which showed that PFOA caused testicular, liver, and pancreatic tumors. That same year, DuPont researchers developed an alternative chemical to PFOA that could be used in the production of Teflon. However, management rejected it deeming it too risky to substitute a chemical with no track record, while at the same time, holding firm that PFOA showed no sign of threats to humans.
• In 2000, 3M ceased production of PFOA, and DuPont opened its own PFOA plant in Fayetteville, NC.
• In 2003, DuPont acknowledged that fumes from overheated Teflon pans could kill birds and cause flu-like symptoms in humans.

Rob Bilott did not know any of this in June 1999 when he filed a lawsuit against DuPont accusing the company of poisoning Earl Tennant’s cattle. He knew that Washington Works produced Teflon, whose waste product was sludge that was dumped into the Dry Run Landfill, which fed the Dry Run Creek, which supplied drinking water to Earl’s cattle. But what was in the sludge that could poison the cattle? When Bilott asked DuPont what chemicals were in the sludge, he was told that they would gladly provide details of any non-listed, non-regulated chemicals he named for them. But, of course, Bilott didn’t know the names of any chemicals in the sludge, so he couldn’t ask for details.

In July 2000, Bilott was still sifting through the 60,000 thousand documents provided to him by DuPont via the legal discovery process, when he came upon a letter dated June 23, 2000 from DuPont to the EPA. What caught his attention was the title of the sender, Director of Toxicology, and the title of the EPA recipient, Director of Applied Toxicology and Health.

The letter was in response to a query from the EPA asking if DuPont used the chemical PFOA[3], and if so, where. The response was “yes”, exclusively at the Washington Works plant in Parkersburg, WV.  Within the document, DuPont also stated that, in 1999, air emission of PFOA from the Washington Works plant totaled 24,000 pounds per year while water emissions (into the Ohio River), totaled 55,000 pounds per year. Additionally, solid waste (sludge) was dumped into three landfills, one of them being the Dry Run Landfill. It was immediately obvious to Bilott that PFOA was most probably the toxic chemical that was used in the production of Teflon, and which was found in the waste material. Although he still had a lot of research to do, now there was no secret as to what was killing Earl Tennant’s cows.

Bilott had searched through all the permits necessary to maintain a landfill, but never saw the mention of PFOA, which would have been required by the EPA had it been considered a toxic chemical that had to be regulated. So Bilott assumed that PFOA was not only unregulated, but that the EPA knew little about it.

Bilott called a chemical expert, who told him that 3M Corporation was discontinuing production of PFOS, a cousin of PFOA, which 3M called Scotchgard, a stain protector and one of the more profitable of 3M’s products. Bilott wondered why 3M would suddenly give up such a valuable production line.

Bilott petitioned the judge to compel DuPont to provide all their documents related to PFOA, and after some haggling, he received another 40,000 documents, including toxicology studies on animals and workers exposed to Teflon production. One of the documents indicated that DuPont purchased a well field that supplied drinking water to Lubeck, WV, a community of 500 houses a few miles downstream from Washington Works, drawing suspicion that Lubeck’s drinking water system was contaminated.  Even without Lubeck, Bilott already had enough on DuPont to make a very strong case in court, and DuPont knew it.

In July 2001, two years after Biilott filed his suit against DuPont and three months before the trial was set to begin, DuPont offered to settle the suit. It was a clear sunny day in Cincinnati, temperatures in the 70s. The three Tennant brothers and two wives drove 3½ hours from Parkersburg to the Cincinnati law office of Rob Bilott to discuss the settlement offer from DuPont. Bilott explained the details of the offer and the consequences of their decision and left the room. Earl Tennant wanted DuPont to take responsibility for their actions but most of the others just wanted to end it after so many years of struggling. The majority voted to accept the settlement offer. Earl was already sick with breathing problems and died eight years later of a heart attack at age 67. His wife Sandra died from cancer two years after Earl. The settlement, agreed to on July 13, 2001, remains confidential.

Class Action

Although Billot had won the Tenant case, he still wanted to file a class action suit on behalf of the tens of thousands of people exposed to PFOA via their tap water. However, despite all the information that he had uncovered, he still could not definitively prove that PFOA caused the residents any injury, and if so, what types of injury. For this, he would need a scientific study with thousands of  participants. Bilott, a thorough investigator,  used a little-known claim called “medical monitoring”, allowed by West Virginia law, but by few other states.

Briefly, the latter specifies that all members of the class who can prove that they were exposed to a hazardous substance by the defendant, based on a wrongful act, can bring a medical monitoring claim that requires the defendant to pay for periodic diagnostic medical exams for specific injuries, which they are at increased risk of contracting, even if they are currently healthy and free of the specified disease, in order to guarantee early detection of the disease. The monitoring is for the life of the claimant.[4]

In this case, DuPont had knowingly released PFOA into the community’s drinking water supply. Bilott filed the class action suit on August 30, 2001, representing 70,000 people who got their drinking water from six water districts in the Parkersburg area.

Dupont’s strategy was to delay as much as possible by filing nuisance briefs and causing significant expense to Bilott’s law firm. A couple of years into the suit, Bilott got much needed publicity from the Environmental Working Group (EWG), a Washington, DC environmental advocacy group, which posted an article on their website about perfluorochemicals (PFCs), the class of chemicals that PFOA and PFOS belong to. EWG stated that “As more studies pour in, PFCs seem destined to supplant DDT, PCSs, dioxin and other chemicals as the most notorious, global chemical contaminants ever produced.”

After further bad publicity, DuPont agreed, in September 2004, to mediation. DuPont agreed to pay for water treatment facilities for all water that was contaminated by PFOA, and also, to the establishment of a Science Panel “to confirm the probable links between PFOA and specific illnesses in the class.” A three-doctor medical panel would determine what medical testing was appropriate and what medical monitoring would be recommended, up to a cap of $235 million, again paid for by DuPont. DuPont also agreed to pay $70 million to benefit the class, i.e., direct payments to the residents, although $20 million of that would go to health and education projects and disease research. During the time of the panel’s work, no member of the class would be allowed to file a personal suit against DuPont. However, once the research was completed, a class member could file a claim against DuPont, but only if they contracted one of the diseases listed by the Science Panel as being linked to PFOA exposure. If the disease was not listed, the claim would be dismissed.

There was one significant hitch in the plan. In order to find a link or links from PFOA exposure to diseases in the class, a large sample of test subjects needed to be assembled in order to distinguish random diseases from disease causation. How could Bilott’s staff ensure that? His legal associates came up with a plan that would assist the Science Panel in identifying diseases.  With the consent of the participants, they used the $50 million DuPont payment to recruit subjects for the study by paying $400 to each participant. Close to 80% all the candidates agreed to participate in the study by having their blood drawn and filling out a questionnaire.

There were so many people who joined the study that it took seven years to complete. On December 2011, the Science Panel established that there was a ‘‘probable link’’ between PFOA and six diseases: kidney cancer, testicular cancer, thyroid disease, high cholesterol, pre-eclampsia (pregnancy-induced high blood pressure), and ulcerative colitis. This allowed 3500 people to sue DuPont directly.

In September 2015, Bilott’s firm took on its first case that grew out of the study, that of Carla Bartlett, a 59-year old woman who was diagnosed with kidney cancer after drinking PFOA-contaminated water for 17 years. Carla was born in Parkersburg but grew up across the Ohio River from DuPont’s Washington Works plant. In 1995, when she was 41, Bartlett was hospitalized for an inflamed gall bladder and was given a CAT scan. They found a grape sized tumor on her kidney. Her doctor resected the tumor, but due to her obesity, she was left with a very long scar and significant pain for several months. Fortunately, her tumor was not metastatic. When Bartlett was tested for PFOA in her blood, the reading came back at 19.5 ppb (parts per billion), which was way higher than the DuPont 1 ppb standard. DuPont tried to blame Carla’s kidney cancer on her being obese, which is a major risk factor for developing kidney cancer. However, DuPont had agreed, a priori, not to challenge the Science Panel’s findings, so their challenge was deemed inadmissible by the court. On October 7, the seven-person jury found DuPont negligent and awarded Carla Bartlet $1.6 million in compensatory damages.

After losing two more cases, from testicular cancer and from rectal cancer that emanated from ulcerative colitis, suits totaling $18 million, DuPont threw in the towel. In February 2017, DuPont agreed to pay $671 million to settle the over 3500 lawsuits from West Virginia and Ohio residents. The amounts for each recipient were determined by an arbiter based on the severity of the recipient’s disease. Another reason DuPont agreed to a settlement was the fact that they wanted to smooth the way to its merger with Dow Chemical, which occurred in August 2017.

The Parkersburg story received broad newspaper coverage and was also the subject of two films, numerous articles, and a book[5], but not much has changed in keeping America’s drinking water safe. Despite the retirement of PFOA and PFOS, there are still many PFAS chemicals in production that have not been tested for toxicity and have taken the place of PFOA and PFOS in consumer products and industrial usage.

Aftermath

3M Corporation stopped making PFOA (C8) in May 2000. At that point, DuPont opened its own plant in Fayetteville, NC to start producing PFOA. In 2005, the EPA fined DuPont $16.5 million for concealing the toxicity of PFOA. EPA established a Stewardship Program whereby all eight American manufacturers of PFOA agreed to phase out production by 2015. DuPont itself stopped using PFOA in 2013.

In 2015, DuPont spun off specialty chemicals, including PFAS production, to a new company called Chemours.

Chemours now uses another PFAS chemical, GenX, to make Teflon. GenX is supposed to be less hazardous than PFOA in that, if it is ingested by an animal, it remains in the body for a shorter time than does PFOA. Secondly, it is not considered by the chemical industry to be as toxic as PFOA, the reasoning being that GenX is a “short-chain” PFAS (it has 6 carbon atoms per molecule), while PFOA has 8 carbon atoms and is considered a long-chain PFAS. The first part is true, but not the second, according to a study by the EPA whose results were released this past fall[6].

In 2017, the Wilmington Star-News broke the story that GenX and other PFAS chemical waste were released for years by Chemours into the Cape Fear River contaminating the drinking water supply of 250,000 people in and around Wilmington, NC. Class action lawsuits have since been initiated against Chemours for dumping GenX into the Cape Fear River and contaminating the drinking water of 250,000 people.

Conclusion

We’re left with two questions. Why a venerable company like DuPont would produce a product that risked contaminating the drinking water supply of 70,000 people for over 50 years, and risk fines, lawsuits, and negative publicity. And, secondly, how can society prevent recurrences of such behavior in order to protect the public health of the community.

Two academic researchers Roy Shapira and Luigi Zingales, wrote a paper in 2017 entitled “Is Pollution Value-Maximizing? The Dupont Case[7]”, which tries to answer these questions.

Based on a 1984 memo, made public at a court hearing, that summarized a meeting of DuPont’s executive staff, who were called together to discuss these issues, management concluded that the production of Teflon was very profitable to the company and would continue to be so since its use was widespread and very popular among American housewives in performing their cooking chores. Secondly, Shapira and Zingales deduced that the executives concluded that the likelihood of being caught for secretly using a hazardous chemical in Teflon’s production was low, and even if caught, the fines and penalties would be considerably lower than the company’s profit in producing the product in the first place. As for its reputation, DuPont had experience in generating good publicity, and, in any case, it could spin off a new company to continue its Teflon production and let the new company take the criticism for continued chemical pollution.

Seeking to Prevent Environmental Misdeeds

Shapira and Zingales suggest four ways to possibly address the unequal balance between private industry and societal needs.

1. Promote whistleblowing.
2. Penalize gag settlements.
3. Penalize legal delays.
4. Hold the decision-making executives personally responsible for their actions.

Shapira and Zingales liken this case to the federal Clean Air Act, which “requires the person in charge of submitting information to the regulator to certify the information and subjects the certifier to possible jail time if the information turns out to be false.”

Although path that might be considered is empowering the EPA to regulate and approve all chemicals before they can be used in any manufacturing process, in the same way that the FDA has to approve drugs before they can be marketed to the public.

One final note. The Science Panel estimated that the number of additional kidney cancer cases beyond the normal number of expected cases in a population of 70,000 was 21 additional cases per year (see the Shapira and Zingales paper, Appendix A). DuPont started using PFOA in 1951, but even if we only take the years 1984 (the date of the DuPont executive staff meeting) meeting, through 2013, when Dupont discontinued use of PFOA, we can assume there were 588 additional kidney cancer cases that were caused by PFOA contamination, and based on that number, there were approximately 104 deaths[8].

[1] “Exposure: Poisoned water, corporate greed, and one lawyer’s twenty-year battle against DuPont” by Robert Bilott

[2] See ATSDR’s (Agency for Toxic Substances and Disease Registry) Public Health Statement on Perfluoroalkyls (PFASs) August 2015 https://www.atsdr.cdc.gov/toxprofiles/tp200-c1-b.pdf

[3] PFOA has at least two other names, C8 and APFO. APFO is an ammonium salt of PFOA and C8 is shorthand notation for PFOA noting that its molecule has 8 carbon atoms. In this article, we use the official designation, PFOA.

[4] Medical Monitoring in West Virginia and the Surrounding State https://dtcwv.org/assets/pdf/notebook-articles/Medical-Monitoring-in-West-Virginia.pdf

[5] See the New York Times Magazine story by Nathaniel Rich, “The Lawyer Who Became DuPont’s Worst Nightmare” on Jan 6, 2016; the 2018 documentary film directed by Stephanie Soechtig, “The Devil We Know” and the 2019 feature film, “Dark Waters” starring Mark Ruffalo and Anne Hathaway, which was based on the Rich article; the August 28, 2015 Huffington Post article by Mariah Blake, “Welcome to Beautiful Parkersburg, WV”; and finally Robert Bilott’s own 2019 book, “Exposure: Poisoned Water, Corporate Greed, and One Lawyer’s Twenty-Year Battle against DuPont”.

[6] US EPA deems two GenX PFAS chemicals more toxic than PFOA; https://cen.acs.org/environment/persistent-pollutants/US-EPA-deems-two-GenX-PFAS-chemicals-more-toxic-than-PFOA/99/i40#.

[7] Is Pollution Value-Maximizing? The Dupont Case; Working Paper 23866; National Bureau of Economic Research; September 2017.

When it Makes Sense to Pollute — and How to Change the Equation; Aug 28, 2018; https://www.chicagobooth.edu/review/when-it-makes-sense-pollute-and-how-change-equation

[8] American Cancer Society: Cancer Facts & Figures 2022  https://www.cancer.org/content/dam/cancer-org/research/cancer-facts-and-statistics/annual-cancer-facts-and-figures/2022/2022-cancer-facts-and-figures.pdf