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DuPont Settles Charges That It Hid Toxic Risk Data

The chemical giant will pay a $16.5-million EPA fine over a compound used to make Teflon

Dec 15, 2005 | Los Angeles Times

Chemical giant DuPont Co. will pay the largest administrative fine in the history of the Environmental Protection Agency to settle charges that it hid information for more than 20 years indicating that a compound used to make Teflon poses a substantial threat to human health.

Without admitting any guilt or liability, DuPont has agreed to pay $16.5 million, including a $10.25-million civil fine, to settle a case alleging eight violations of federal laws that require companies to report the toxic dangers of chemicals they manufacture.

Perfluorooctanoic acid, or PFOA, a synthetic compound pioneered by DuPont and used for 50 years, has been found in the blood of 95% of Americans tested. It persists in the environment indefinitely and migrates long distances in the air. Researchers have found it in the blood of polar bears near the North Pole.

"This is the largest civil administrative penalty EPA has ever obtained under any environmental statue. Not by a little, by a lot," EPA Assistant Administrator Granta Y. Nakayama said. "This settlement sends a strong message that companies are responsible for promptly informing EPA about risk information associated with their chemicals."

The maximum potential fine was about $300 million, and environmental organizations, particularly the Environmental Working Group, which filed a petition in 2003 that triggered the EPA investigation, said the penalty amounted to a slap on the wrist for the chemical-manufacturing giant, which reported $27 billion in sales last year.

DuPont executives contend that there is no evidence that the chemical has caused any human health problems in its workers or in the general population after a half-century of use. But EPA officials say the company knew as long ago as 1981 that the chemical built up in human bodies, passed through the womb to fetuses and, in animal tests, caused birth defects.

Wilmington, Del.-based DuPont, the nation's second-largest chemical company, said Wednesday that the settlement "closes this matter for the company without any admission of liability." However, DuPont attorneys said they disagreed with how the EPA interpreted what data must be reported under the Toxic Substances Control Act, the 1976 law that governs toxic chemicals.

"Our interpretation of the reporting requirements differed from the agency's. The settlement allows us to put this matter behind us and move forward," Stacey Mobley, DuPont's senior vice president and general counsel, said in a statement.

PFOA is used in the manufacture of fluoropolymers, including Teflon, at a DuPont plant in Wood County, W.Va. The chemical is considered an essential ingredient in the manufacture of Teflon, which is used not only in nonstick cookware but also in clothing, building materials, bedding and hundreds of other products.

No one knows how PFOA gets into human bodies, but the use of Teflon products is probably not the source, scientists say, because PFOA is removed from finished products during manufacturing. Instead, the chemical is released into the water and air at DuPont plants, and also might be formed by the breakdown of other fluoropolymers, used to make a variety of products including telephone cables and computer chips fire and water-resistant. DuPont said it had reduced PFOA emissions from its U.S. plants by 98%.

In a draft risk assessment unveiled in January, the EPA found "no notable health effects," including no elevated cancer rate, among DuPont workers exposed to PFOA. But in tests on laboratory animals, the EPA reported links to liver and testicular cancer, reduced weight of newborns and immune suppression.

The reporting provisions that DuPont was accused of violating are designed to be an "early warning system" to let the EPA know about "chemicals that may pose a risk to workers, the public and the environment," said Susan Hazen, the EPA's principal deputy assistant administrator for the Office of Prevention, Pesticides and Toxic Substances.

The allegations against DuPont stem from internal company memos obtained by lawyers for Ohio River Valley residents whose drinking water was contaminated with PFOA at the West Virginia factory. DuPont last year agreed to pay as much as $342 million to the residents to settle their case.

DuPont's memos show that the company was aware in 1981 of a study conducted by 3M Co. that showed PFOA was toxic to newborn rats, killing some and causing eye and facial defects.

The company found PFOA in the bloodstream of its female workers and at least one of their fetuses in 1981. The chemical was also detected in a 2-year-old child, EPA officials said. The company in 1981 moved female employees out of areas where the chemical was being used and told them to consult doctors before becoming pregnant but it did not inform the EPA.

Nakayama said the EPA should have been told "because it was the first and only information about potential human transfer and levels of PFOA in children."

DuPont also learned in the mid-1980s that the chemical had contaminated the water supply of 30,000 Ohio River Valley residents but did not report it, the EPA said.

EPA officials alleged that DuPont continued to fail to disclose information as recently as 2004, after the company already had been charged with four violations. Four more violations were added last year.

In the consent agreement filed Wednesday, DuPont said it agreed to the settlement "to avoid unnecessary business disruption and to avoid the necessity of litigation," and that it was not conceding any facts in the case or interpretations of the toxics law.

Environmental activists were upset that DuPont executives did not apologize or admit responsibility.

"What we've heard instead is a company lawyer dismissing the settlement as nothing more than business as usual, with no expression of having failed its obligation as a corporate citizen," Environmental Working Group President Ken Cook said.

Of the $16.5 million, DuPont agreed to spend $6.25 million on environmental projects, including $1.25 million for a "green chemistry" program in West Virginia schools designed to reduce chemical risks in school science laboratories. A three-year, $5-million project will investigate whether nine of DuPont's fluorotelomer products break down to form PFOA. That may help determine how the chemical winds up in human bodies.

The fine was the largest for a case handled as an EPA administrative matter rather than filed in a federal court. The EPA had the authority to impose a fine of $25,000 to $27,500 a day for each violation, or $313 million. Community activists in the Ohio Valley and national environmental groups had urged the EPA to fine DuPont at least a year of Teflon profits about $200 million.

The EPA is studying whether to restrict use of PFOA, an action that the agency has rarely taken against an existing industrial chemical.

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