Please read the NY Times article “The Lawyer Who Became DuPont’s worst nightmare.” In addition please read the Ethics Analysis Framework and the Common Good Approach and Utilitarian Approach in the attached folder. Once you have read this material, please reason to the following questions:Word count at least 4501) Please select either the for your analysis of this question.Common Good Approach or the Utilitarian Approach (see attached file) Using your selected Approach, was it predictable that DuPont would act against the interest of others, including the communities it operated its chemical plants in, in the pursuit of profits? Explain.2) Discuss DuPont’s liability in terms of the assigned reading from chapter 24 (p. 670-78), specifically section 24-5d and 24-5e.(see attached file) Ethical Analysis Framework.pdfFebruary 2 2020, 9:02 PM24–5d WaterPollution
Water pollution stems mostly from industrial, municipal, and agricultural sources. Pollutants entering
streams, lakes, and oceans include organic wastes, heated water, sediments from soil runoff, nutrients
(including fertilizers and human and animal wastes), and toxic chemicals and other hazardous substances.
Federal regulations governing the pollution of water can be traced back to the 1899 Rivers and Harbors
Appropriations Act.12 These regulations prohibited ships and manufacturers from discharging or depositing
refuse in navigable waterways without a permit. In 1948, Con- gress passed the Federal Water Pollution
Control Act (FWPCA),13 but its regulatory system and enforcement powers proved to be inadequate.
TheCleanWaterAct In1972,amendmentstotheFWPCA—knownastheCleanWaterAct (CWA)—established
the following goals: (1) make waters safe for swimming, (2) protect fish and wildlife, and (3) eliminate the
discharge of pollutants into the water. The amendments set specific time schedules, which were extended by
amendment and by the Water Quality Act.14 Under these schedules, the EPA limits the discharge of various
types of pollutants based on the technology available for controlling them.
Permit System for Point-Source Emissions. The CWA established a permit system, called the National
Pollutant Discharge Elimination System (NPDES), for regulating discharges from “point sources” of pollution.
Point sources include industrial facilities, municipal facilities (such as sewer pipes and sewage treatment
plants), and agricultural facilities.15 Under this system, industrial, municipal, and agricultural polluters must
apply for permits before dis- charging wastes into surface waters.
NPDES permits can be issued by the EPA, authorized state agencies, and Indian tribes, but only if the
discharge will not violate water-quality standards (either federal or state standards). Special requirements
must be met to discharge toxic chemicals and residue from oil spills. NPDES permits must be renewed every
five years.
StandardsforEquipment. Regulationsgenerallyspecifythatthebestavailablecontroltechnology, or BACT, be
installed. The EPA issues guidelines as to what equipment meets this standard. Essentially, the guidelines
require the most effective pollution-control equipment available.
New sources must install BACT equipment before beginning operations. Existing sources are subject to
timetables for the installation of BACT equipment and must immediately install equipment that utilizes the
best practical control technology, or BPCT. The EPA also issues guide- lines as to what equipment meets this
standard.
ViolationsoftheCleanWaterAct Becausepoint-sourcewaterpollutioncontrolisbasedon a permit
system, the permits are the key to enforcement. States have primary responsibility for enforcing the permit
system, subject to EPA monitoring.
Discharging emissions into navigable waters without a permit, or in violation of pollution limits under a
permit, violates the CWA. Violators are subject to a variety of civil and criminal penalties. Depending on the
violation, civil penalties range from $10,000 to $25,000 per day, but not more than $25,000 per violation.
Criminal penalties, which apply only if a violation was intentional, range from a fine of $2,500 per day and
imprisonment for up to one year to a fine of $1 million and fifteen years’ imprisonment. Injunctive relief and
damages can also be imposed. The polluting party can be required to clean up the pollution or pay for the cost
of doing so.
Drinking Water The Safe Drinking Water Act16 requires the EPA to set maximum levels for pollutants in
public water systems. Public water system operators must come as close as pos- sible to meeting the EPA’s
standards by using the best available technology that is economically and technologically feasible.
The act, as amended, also requires each supplier of drinking water to send an annual statement describing the
source of its water to every household it supplies. The statement must disclose the level of any contaminants
in the water and any possible health concerns associated with the contaminants.
Oil Pollution When more than 10 million gallons of oil leaked into Alaska’s Prince William Sound from the
Exxon Valdez supertanker in 1989, Congress responded by passing the Oil Pollution Act. 17 (At that time, the
Exxon Valdez disaster was the worst oil spill in U.S. history, but the British Petroleum oil spill in the Gulf of
Mexico in 2010 surpassed it.)
Under this act, any onshore or offshore oil facility, oil shipper, vessel owner, or vessel operator that
discharges oil into navigable waters or onto an adjoining shore can be liable for clean-up costs and damages.
In addition, the polluter can be ordered to pay for damage to natural resources, private property, and the
local economy, including the increased cost of providing public services.
24–5e Toxic
Chemicals and Hazardous Waste
Originally, most environmental clean-up efforts were directed toward reducing smog and making water safe
for fishing and swimming. Today, the control of toxic chemicals used in agriculture and in industry has
become increasingly important.
Some industrial, agricultural, and household wastes pose more serious threats than others. If not properly
disposed of, these toxic chemicals may present a substantial danger to human health and the environment. If
released into the environment, they may contaminate public drinking water resources.
PesticidesandHerbicides TheFederalInsecticide,Fungicide,andRodenticideAct(FIFRA)18 regulates the
use of pesticides and herbicides. These substances must be (1) registered before they can be sold, (2)
certified and used only for approved applications, and (3) used in lim- ited quantities when applied to food
crops. The act gives the EPA authority to oversee the sale and use of these substances and to determine
whether, and at what levels, a substance may be harmful.
It is a violation of FIFRA to sell a pesticide or herbicide that is unregistered or has had its registration
canceled or suspended. It is also a violation to sell a pesticide or herbicide with a false or misleading label or
to destroy or deface any labeling required under the act.
Penalties for commercial dealers include imprisonment for up to one year and a fine of up to $25,000.
Farmers and other private users of pesticides or herbicides who violate the act are subject to a $1,000 fine
and incarceration for up to thirty days. Note that a state can also regulate the sale and use of federally
registered pesticides.
ToxicSubstances TheToxicSubstancesControlAct19regulateschemicalsandchemicalcom- pounds that are
known to be toxic, such as asbestos and polychlorinated biphenyls (PCBs). The act also controls the
introduction of new chemical compounds by requiring investigation of any possible harmful effects from
these substances.
The act authorizes the EPA to require that manufacturers, processors, and other orga- nizations planning to
use chemicals first determine their effects on human health and the environment. The EPA can regulate
substances that could pose an imminent hazard or an unreasonable risk of injury to health or the
environment. The EPA may require special label- ing, limit the use of a substance, set production quotas, or
prohibit the use of a substance altogether.
Resource Conservation and Recovery Act The Resource Conservation and Recovery Act (RCRA)20
was passed in reaction to concern over the effects of hazardous waste materials on the environment. The
RCRA required the EPA to determine which forms of solid waste should be considered hazardous and to
establish regulations to monitor and control hazardous waste disposal.
The act authorized the EPA to issue technical requirements for facilities that store and treat hazardous waste.
The act also required all producers of hazardous waste materials to label and package properly any
hazardous waste to be transported. Amendments to the RCRA decreased the use of land containment in the
disposal of hazardous waste and required smaller genera- tors of hazardous waste to comply with the act.
Under the RCRA, a company may be assessed a civil penalty of up to $25,000 for each vio- lation. Penalties are
based on the seriousness of the violation, the probability of harm, and the extent to which the violation
deviates from RCRA requirements. Criminal penalties include fines of up to $50,000 for each day of violation,
imprisonment for up to two years (in most instances), or both. Criminal fines and the period of imprisonment
can be doubled for certain repeat offenders.
Superfund The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 21
commonly known as Superfund, regulates the clean-up of disposal sites in which hazardous waste is leaking
into the environment. CERCLA, as amended, has four primary elements:
1. It established an information-gathering and analysis system that enables the government to
identify chemical dump sites and determine the appropriate action.
2. It authorized the EPA to respond to hazardous substance emergencies and to arrange for the
clean-up of a leaking site directly if the persons responsible for the problem fail to clean up
the site.
3. It created a Hazardous Substance Response Trust Fund (also called Superfund) to pay for the
clean-up of hazardous sites using funds obtained through taxes on certain businesses.
4. It allowed the government to recover the cost of clean-up from persons who were (even
remotely) responsible for hazardous substance releases.
Potentially Responsible Parties. Superfund provides that when a release or a potential release of
hazardous chemicals from a site occurs, the following persons may be held responsible for cleaning up the
site:
1. The person who generated the wastes disposed of at the site.
2. The person who transported the waste to the site.
3. The person who owned or operated the site at the time of the disposal. 4. The current owner or operator of
the site.
A person falling within one of these categories is referred to as a potentially responsible party (PRP). If the
PRPs do not clean up the site, the EPA can clean up the site and recover the clean-up costs from the PRPs.
Strict Liability of PRPs. Superfund imposes strict liability on PRPs, and that liability cannot be avoided
through transfer of ownership. Thus, selling a site where hazardous wastes were disposed of does not relieve
the seller of liability, and the buyer also becomes liable for the clean-up. Liability also extends to businesses
that merge with or buy corporations that have violated CERCLA.
Joint and Several Liability. Liability under Superfund is usually joint and several—that is, a person who
generated only a fraction of the hazardous waste disposed of at the site may nev- ertheless be liable for all of
the clean-up costs. CERCLA authorizes a party who has incurred clean-up costs to bring a “contribution
action” against any other person who is liable or poten- tially liable for a percentage of the costs.
One way for a business to minimize its potential liability under Superfund is to con- duct environmental
compliance audits of its own operations regularly to determine whether any environmental hazards exist. The
EPA encourages companies to conduct self-audits and promptly detect, disclose, and correct wrongdoing. Companies that do so
are subject to lighter penalties (fines may be reduced as much as 75 percent) for violations of environmental laws.
In addition, under EPA guidelines, the EPA will waive all fines if a small company corrects environmental violations within 180
days after being notified of the violations (or 360 days if pollution-prevention techniques are involved). The policy does not
apply to criminal violations of environmental laws or to violations that pose a significant threat to public health, safety, or the
environment.
Defenses. There are a few defenses to liability under CERCLA. The most important is the innocent landowner
defense.22 Under this defense, an innocent property owner may be able to avoid liability by showing that he or
she had no contractual or employment relationship with the person who released the hazardous substance
onto the land. If the party who disposed of the substances transferred the property by contract to the current
owner, the defense normally will not be available.
The current owner may still be able to assert the defense, however, by showing that at the time the property
was acquired, she or he had no reason to know that it had been used for hazardous waste disposal. The owner
must show that at the time of the purchase, she or he undertook all appropriate investigation into the
previous ownership and uses of the property to determine whether there was reason to be concerned about
hazardous substances. In effect, this defense protects only property owners who took precautions and
investigated the possi- bility of environmental hazards at the time they bought the property.
12/22/2019
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problems. The culprit, instead, was poor husbandry: ʻʻpoor nutrition, inadequate veterinary care and lack of y control.’’ In other words,
the Tennants didn’t know how to raise cattle; if the cows were dying, it was their own fault.
This did not sit well with the Tennants, who began to suffer the consequences of antagonizing Parkersburg’s main employer. Lifelong
friends ignored the Tennants on the streets of Parkersburg and walked out of restaurants when they entered. ʻʻI’m not allowed to talk to
you,’’ they said, when confronted. Four different times, the Tennants changed churches.
Wilbur called the of ce nearly every day, but Bilott had little to tell him. He was doing for the Tennants what he would have done for any of
his corporate clients — pulling permits, studying land deeds and requesting from DuPont all documentation related to Dry Run Land ll —
but he could nd no evidence that explained what was happening to the cattle. ʻʻWe were getting frustrated,’’ Bilott said. ʻʻI couldn’t blame
the Tennants for getting angry.’’
With the trial looming, Bilott stumbled upon a letter DuPont had sent to the E.P.A. that mentioned a substance at the land ll with a cryptic
name: ʻʻPFOA.’’ In all his years working with chemical companies, Bilott had never heard of PFOA. It did not appear on any list of
regulated materials, nor could he nd it in Taft’s in-house library. The chemistry expert that he had retained for the case did, however,
vaguely recall an article in a trade journal about a similar-sounding compound: PFOS, a soaplike agent used by the technology
conglomerate 3M in the fabrication of Scotchgard.
Bilott hunted through his les for other references to PFOA, which he learned was short for per uorooctanoic acid. But there was nothing.
He asked DuPont to share all documentation related to the substance; DuPont refused. In the fall of 2000, Bilott requested a court order to
force them. Against DuPont’s protests, the order was granted. Dozens of boxes containing thousands of unorganized documents began to
arrive at Taft’s headquarters: private internal correspondence, medical and health reports and con dential studies conducted by DuPont
scientists. There were more than 110,000 pages in all, some half a century old. Bilott spent the next few months on the oor of his of ce,
poring over the documents and arranging them in chronological order. He stopped answering his of ce phone. When people called his
secretary, she explained that he was in the of ce but had not been able to reach the phone in time, because he was trapped on all sides by
boxes.
ʻʻI started seeing a story,’’ Bilott said. ʻʻI may have been the rst one to actually go through them all. It became apparent what was going
on: They had known for a long time that this stuff was bad.’’
Bilott is given to understatement. (ʻʻTo say that Rob Bilott is understated,’’ his colleague Edison Hill says, ʻʻis an understatement.’’) The
story that Bilott began to see, cross-legged on his of ce oor, was astounding in its breadth, speci city and sheer brazenness. ʻʻI was
shocked,’’ he said. That was another understatement. Bilott could not believe the scale of incriminating material that DuPont had sent him.
The company appeared not to realize what it had handed over. ʻʻIt was one of those things where you can’t believe you’re reading what
you’re reading,’’ he said. ʻʻThat it’s actually been put in writing. It was the kind of stuff you always heard about happening but you never
thought you’d see written down.’’
The
began in 1951, when DuPont started purchasing PFOA (which the company refers to as C8) from 3M for use in the
manufacturing of Te on. 3M invented PFOA just four years earlier; it was used to keep coatings like Te on from clumping during
production. Though PFOA was not classi ed by the government as a hazardous substance, 3M sent DuPont recommendations on how to
dispose of it. It was to be incinerated or sent to chemical-waste facilities. DuPont’s own instructions speci ed that it was not to be ushed
into surface water or sewers. But over the decades that followed, DuPont pumped hundreds of thousands of pounds of PFOA powder
through the outfall pipes of the Parkersburg facility into the Ohio River. The company dumped 7,100 tons of PFOA-laced sludge into
ʻʻdigestion ponds’’: open, unlined pits on the Washington Works property, from which the chemical could seep straight into the ground.
PFOA entered the local water table, which supplied drinking water to the communities of Parkersburg, Vienna, Little Hocking and Lubeck
— more than 100,000 people in all.
Bilott learned from the documents that 3M and DuPont had been conducting secret medical studies on PFOA for more than four decades.
In 1961, DuPont researchers found that the chemical could increase the size of the liver in rats and rabbits. A year later, they replicated
these results in studies with dogs. PFOA’s peculiar chemical structure made it uncannily resistant to degradation. It also bound to plasma
proteins in the blood, circulating through each organ in the body. In the 1970s, DuPont discovered that there were high concentrations of
PFOA in the blood of factory workers at Washington Works. They did not tell the E.P.A. at the time. In 1981, 3M — which continued to serve
as the supplier of PFOA to DuPont and other corporations — found that ingestion of the substance caused birth defects in rats. After 3M
shared this information, DuPont tested the children of pregnant employees in their Te on division. Of seven births, two had eye defects.
DuPont did not make this information public.
In 1984, DuPont became aware that dust vented from factory chimneys settled well beyond the property line and, more disturbing, that
PFOA was present in the local water supply. DuPont declined to disclose this nding. In 1991, DuPont scientists determined an internal
safety limit for PFOA concentration in drinking water: one part per billion. The same year, DuPont found that water in one local district
contained PFOA levels at three times that gure. Despite internal debate, it declined to make the information public.
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(In a statement, DuPont claimed that it did volunteer health information about PFOA to the E.P.A. during those decades. When asked for
evidence, it forwarded two letters written to West Virginian government agencies from 1982 and 1992, both of which cited internal studies
that called into question links between PFOA exposure and human health problems.)
By the 90s, Bilott discovered, DuPont understood that PFOA caused cancerous testicular, pancreatic and liver tumors in lab animals. One
laboratory study suggested possible DNA damage from PFOA exposure, and a study of workers linked exposure with prostate cancer.
DuPont at last hastened to develop an alternative to PFOA. An interof ce memo sent in 1993 announced that for the rst time, we have a
viable candidate that appeared to be less toxic and stayed in the body for a much shorter duration of time. Discussions were held at
DuPont s corporate headquarters to discuss switching to the new compound. DuPont decided against it. The risk was too great: Products
manufactured with PFOA were an important part of DuPont s business, worth $1 billion in annual pro t.
But the crucial discovery for the Tennant case was this: By the late 1980s, as DuPont became increasingly concerned about the health
effects of PFOA waste, it decided it needed to nd a land ll for the toxic sludge dumped on company property. Fortunately they had
recently bought 66 acres from a low-level employee at the Washington Works facility that would do perfectly.
By 1990, DuPont had dumped 7,100 tons of PFOA sludge into Dry Run Land ll. DuPont s scientists understood that the land ll drained into
the Tennants remaining property, and they tested the water in Dry Run Creek. It contained an extraordinarily high concentration of
PFOA. DuPont did not tell this to the Tennants at the time, nor did it disclose the fact in the cattle report that it commissioned for the
Tennant case a decade later the report that blamed poor husbandry for the deaths of their cows. Bilott had what he needed.
In A g
2000, Bilott called DuPont s lawyer, Bernard Reilly, and explained that he knew what was going on. It was a brief conversation.
The Tennants settled. The rm would receive its contingency fee. The whole business might have ended right there. But Bilott was not
satis ed.
I was irritated, he says.
DuPont was nothing like the corporations he had represented at Taft in the Superfund cases. This was a completely different scenario.
DuPont had for decades been actively trying to conceal their actions. They knew this stuff was harmful, and they put it in the water
anyway. These were bad facts. He had seen what the PFOA-tainted drinking water had done to cattle. What was it doing to the tens of
thousands of people in the areas around Parkersburg who drank it daily from their taps? What did the insides of their heads look like?
Were their internal organs green?
Bilott spent the following months drafting a public brief against DuPont. It was 972 pages long, including 136 attached exhibits. His
colleagues call it Rob s Famous Letter. We have con rmed that the chemicals and pollutants released into the environment by DuPont
at its Dry Run Land ll and other nearby DuPont-owned facilities may pose an imminent and substantial threat to health or the
environment, Bilott wrote. He demanded immediate action to regulate PFOA and provide clean water to those living near the factory. On
March 6, 2001, he sent the letter to the director of every relevant regulatory authority, including Christie Whitman, administrator of the
E.P.A., and the United States attorney general, John Ashcroft.
DuPont reacted quickly, requesting a gag order to block Bilott from providing the information he had discovered in the Tennant case to the
government. A federal court denied it. Bilott sent his entire case le to the E.P.A.
DuPont freaked out when they realized that this guy was onto them, says Ned McWilliams, a young trial lawyer who later joined Bilott s
legal team. For a corporation to seek a gag order to prevent somebody from speaking to the E.P.A. is an extraordinary remedy. You could
realize how bad that looks. They must have known that there was a small chance of winning. But they were so afraid that they were willing
to roll the dice.
With the Famous Letter, Bilott crossed a line. Though nominally representing the Tennants their settlement had yet to be concluded
Bilott spoke for the public, claiming extensive fraud and wrongdoing. He had become a threat not merely to DuPont but also to, in the
words of one internal memo, the entire uoropolymers industry
an industry responsible for the high-performance plastics used in
many modern devices, including kitchen products, computer cables, implantable medical devices and bearings and seals used in cars and
airplanes. PFOA was only one of more than 60,000 synthetic chemicals that companies produced and released into the world without
regulatory oversight.
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Jim Tennant and his wife Della sold DuPont a 66-acre tract of land that became part of
the Dry Run Landfill Bryan Schutmaat for The New York Times
ʻʻRob’s letter lifted the curtain on a whole new theater,’’ says Harry Deitzler, a plaintiff’s lawyer in West Virginia who works with Bilott.
ʻʻBefore that letter, corporations could rely upon the public misperception that if a chemical was dangerous, it was regulated.’’ Under the
1976 Toxic Substances Control Act, the E.P.A. can test chemicals only when it has been provided evidence of harm. This arrangement,
which largely allows chemical companies to regulate themselves, is the reason that the E.P.A. has restricted only ve chemicals, out of tens
of thousands on the market, in the last 40 years.
It was especially damning to see these allegations against DuPont under the letterhead of one of the nation’s most prestigious corporate
defense rms. ʻʻYou can imagine what some of the other companies that Taft was representing — a Dow Chemical — might have thought of
a Taft lawyer taking on DuPont,’’ Larry Winter says. ʻʻThere was a threat that the rm would suffer nancially.’’ When I asked Thomas
Terp about Taft’s reaction to the Famous Letter, he replied, not quite convincingly, that he didn’t recall one. ʻʻOur partners,’’ he said, ʻʻare
proud of the work that he has done.’’
Bilott, however, worried that corporations doing business with Taft might see things differently. ʻʻI’m not stupid, and the people around me
aren’t stupid,’’ he said. ʻʻYou can’t ignore the economic realities of the ways that business is run and the way clients think. I perceived that
there were some ʻWhat the hell are you doing?’ responses.’’
The letter led, four years later, in 2005, to DuPont’s reaching a $16.5 million settlement with the E.P.A., which had accused the company of
concealing its knowledge of PFOA’s toxicity and presence in the environment in violation of the Toxic Substances Control Act. (DuPont was
not required to admit liability.) At the time, it was the largest civil administrative penalty the E.P.A. had obtained in its history, a statement
that sounds more impressive than it is. The ne represented less than 2 percent of the pro ts earned by DuPont on PFOA that year.
Bilott never represented a corporate client again.
The ob io ne step was to le a class-action lawsuit against DuPont on behalf of everyone whose water was tainted by PFOA. In all
ways but one, Bilott himself was in the ideal position to le such a suit. He understood PFOA’s history as well as anyone inside DuPont did.
He had the technical and regulatory expertise, as he had proved in the Tennant case. The only part that didn’t make sense was his rm: No
Taft lawyer, to anyone’s recollection, had ever led a class-action lawsuit.
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It was one thing to pursue a sentimental case on behalf of a few West Virginia cattle farmers and even write a public letter to the E.P.A. But
an industr -threatening class-action suit against one of the world s largest chemical corporations was different. It might establish a
precedent for suing corporations over unregulated substances and imperil Taft s bottom line. This point was made to Terp b Bernard
Reill , DuPont s in-house law er, according to accounts from Bilott s plaintiff s-law er colleagues; the sa Reill called to demand that
Bilott back off the case. (Terp con rms that Reill called him but will not disclose the content of the call; Bilott and Reill decline to speak
about it, citing continuing litigation.) Given what Bilott had documented in his Famous Letter, Taft stood b its partner.
A lead plaintiff soon presented himself. Joseph Kiger, a night-school teacher in Parkersburg, called Bilott to ask for help. About nine
months earlier, he received a peculiar note from the Lubeck water district. It arrived on Halloween da , enclosed in the monthl water bill.
The note explained that an unregulated chemical named PFOA had been detected in the drinking water in low concentrations, but that it
was not a health risk. Kiger had underlined statements that he found particularl baf ing, like: DuPont reports that it has toxicological
and epidemiological data to support con dence that exposure guidelines established b DuPont are protective of human health. The term
support con dence seemed bi arre, as did protective of human health, not to mention the claim that DuPont s own data supported its
con dence in its own guidelines.
Still, Kiger might have forgotten about it had his wife, Darlene, not alread spent much of her adulthood thinking about PFOA. Darlene s
rst husband had been a chemist in DuPont s PFOA lab. (Darlene asked that he not be named so that he wouldn t be involved in the local
politics around the case.) When ou worked at DuPont in this town, Darlene sa s toda , ou could have ever thing ou wanted.
DuPont paid for his education, it secured him a mortgage and it paid him a generous salar . DuPont even gave him a free suppl of PFOA,
which, Darlene sa s, she used as soap in the famil s dishwasher and to clean the car. Sometimes her husband came home from work sick
fever, nausea, diarrhea, vomiting after working in one of the PFOA storage tanks. It was a common occurrence at Washington Works.
Darlene sa s the men at the plant called it Te on u.
In 1976, after Darlene gave birth to their second child, her husband told her that he was not allowed to bring his work clothes home
an more. DuPont, he said, had found out that PFOA was causing health problems for women and birth defects in children. Darlene would
remember this six ears later when, at 36, she had to have an emergenc h sterectom and again eight ears later, when she had a second
surger . When the strange letter from the water district arrived, Darlene sa s, I kept thinking back to his clothing, to m h sterectom . I
asked m self, what does DuPont have to do with our drinking water?
Joe called the West Virginia Department of Natural Resources ( The treated me like I had the plague ), the Parkersburg of ce of the
state s Department of Environmental Protection ( nothing to worr about ), the water division ( I got shut down ), the local health
department ( just plain rude ), even DuPont ( I was fed the biggest line of [expletive] an bod could have been fed ), before a scientist
in the regional E.P.A. of ce nall took his call.
Good God, Joe, the scientist said. What the hell is that stuff doing in our water? He sent Kiger information about the Tennant lawsuit.
On the court papers Kiger kept seeing the same name: Robert Bilott, of Taft Stettinius & Hollister, in Cincinnati.
Bi
had a ici a ed suing on behalf of the one or two water districts closest to Washington Works. But tests revealed that six districts, as
well as do ens of private wells, were tainted with levels of PFOA higher than DuPont s own internal safet standard. In Little Hocking, the
water tested positive for PFOA at seven times the limit. All told, 70,000 people were drinking poisoned water. Some had been doing so for
decades.
But Bilott faced a vexing legal problem. PFOA was not a regulated substance. It appeared on no federal or state list of contaminants. How
could Bilott claim that 70,000 people had been poisoned if the government didn t recogni e PFOA as a toxin if PFOA, legall speaking,
was no different than water itself? In 2001, it could not even be proved that exposure to PFOA in public drinking water caused health
problems. There was scant information available about its impact on large populations. How could the class prove it had been harmed b
PFOA when the health effects were largel unknown?
The best metric Bilott had to judge a safe exposure level was DuPont s own internal limit of one part per billion. But when DuPont learned
that Bilott was preparing a new lawsuit, it announced that it would re-evaluate that gure. As in the Tennant case, DuPont formed a team
composed of its own scientists and scientists from the West Virginia Department of Environmental Protection. It announced a new
threshold: 150 parts per billion.
Bilott found the gure mind-blowing. The toxicologists he hired had settled upon a safet limit of 0.2 parts per billion. But West Virginia
endorsed the new standard. Within two ears, three law ers regularl used b DuPont were hired b the state D.E.P. in leadership
positions. One of them was placed in charge of the entire agenc . The wa that transpired was just ama ing to me, Bilott sa s. I
suppose it wasn t so ama ing to m fellow counsel in West Virginia who know the s stem there. But it was to me. The same DuPont
law ers tasked with writing the safet limit, Bilott said, had become the government regulators responsible for enforcing that limit.
Bilott devised a new legal strateg . A ear earlier, West Virginia had become one of the rst states to recogni e what is called, in tort law, a
medical-monitoring claim. A plaintiff needs to prove onl that he or she has been exposed to a toxin. If the plaintiff wins, the defendant is
required to fund regular medical tests. In these cases, should a plaintiff later become ill, he or she can sue retroactivel for damages. For
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this reason, Bilott filed the class-action suit in August 2001 in state court, even though four of the six affected water districts lay across the
Ohio border.
Meanwhile the E.P.A., drawing from Bilott’s research, began its own investigation into the toxicity of PFOA. In 2002, the agency released
its initial findings: PFOA might pose human health risks not only to those drinking tainted water, but also to the general public — anyone,
for instance, who cooked with Te on pans. The E.P.A. was particularly alarmed to learn that PFOA had been detected in American blood
banks, something 3M and DuPont had known as early as 1976. By 2003 the average concentration of PFOA in the blood of an adult
American was four to five parts per billion. In 2000, 3M ceased production of PFOA. DuPont, rather than use an alternative compound,
built a new factory in Fayetteville, N.C., to manufacture the substance for its own use.
Bilott’s strategy appeared to have worked. In September 2004, DuPont decided to settle the class-action suit. It agreed to install filtration
plants in the six affected water districts if they wanted them and pay a cash award of $70 million. It would fund a scientific study to
determine whether there was a ʻʻprobable link’’ — a term that delicately avoided any declaration of causation — between PFOA and any
diseases. If such links existed, DuPont would pay for medical monitoring of the affected group in perpetuity. Until the scientific study came
back with its results, class members were forbidden from filing personal-injury suits against DuPont.
The chemical site near Parkersburg, W.Va., source of the waste at the center of the
DuPont class-action lawsuit. Bryan Schutmaat for The New York Times
A reasonable expectation, at this point, was that the lawyers would move on. ʻʻIn any other class action you’ve ever read about,’’ Deitzler
says, ʻʻyou get your 10 bucks in the mail, the lawyers get paid and the lawsuit goes away. That’s what we were supposed to do.’’ For three
years, Bilott had worked for nothing, costing his firm a fortune. But now Taft received a windfall: Bilott and his team of West Virginian
plaintiff lawyers received $21.7 million in fees from the settlement. ʻʻI think they were thinking, This guy did O.K.,’’ Deitzler says. ʻʻI
wouldn’t be surprised if he got a raise.’’
Not only had Taft recouped its losses, but DuPont was providing clean water to the communities named in the suit. Bilott had every reason
to walk away.
He didn’t.
There was a gap in the data,’’ Bilott says. The company’s internal health studies, as damning as they were, were limited to factory
employees. DuPont could argue — and had argued — that even if PFOA caused medical problems, it was only because factory workers had
been exposed at exponentially higher levels than neighbors who drank tainted water. The gap allowed DuPont to claim that it had done
nothing wrong.
Bilott represented 70,000 people who had been drinking PFOA-laced drinking water for decades. What if the settlement money could be
used to test them? ʻʻClass members were concerned about three things,’’ Winter says. ʻʻOne: Do I have C8 in my blood? Two: If I do, is it
harmful? Three: If it’s harmful, what are the effects?’’ Bilott and his colleagues realized they could answer all three questions, if only they
could test their clients. Now, they realized, there was a way to do so. After the settlement, the legal team pushed to make receipt of the cash
award contingent on a full medical examination. The class voted in favor of this approach, and within months, nearly 70,000 West
Virginians were trading their blood for a $400 check.
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E er ear Rob Bilott writes a letter to the E.P.A. and the West Virginia D.E.P., urging the regulation of PFOA in drinking water. In 2009,
the E.P.A. set a provisional limit of 0.4 parts per billion for short-term exposure, but has never nali ed that gure. This means that local
water districts are under no obligation to tell customers whether PFOA is in their water. In response to Bilott s most recent letter, the E.P.A.
claimed that it would announce a lifetime health advisor level for PFOA b earl 2016.
This advisor level, if indeed announced, might be a source of comfort to future generations. But if ou are a sentient being reading this
article in 2016, ou alread have PFOA in our blood. It is in our parents blood, our children s blood, our lover s blood. How did it get
there? Through the air, through our diet, through our use of nonstick cookware, through our umbilical cord. Or ou might have drunk
tainted water. The Environmental Working Group has found manufactured uorochemicals present in 94 water districts across 27 states
(see sidebar beginning on Page 38). Residents of Issaquah, Wash.; Wilmington, Del.; Colorado Springs; and Nassau Count on Long
Island are among those whose water has a higher concentration of uorochemicals than that in some of the districts included in Rob
Bilott s class-action suit. The drinking water in Parkersburg itself, whose water district was not included in the original class-action suit
and has failed to compel DuPont to pa for a ltration s stem, is currentl tainted with high levels of PFOA. Most residents appear not to
know this.
Where scientists have tested for the presence of PFOA in the world, the have found it. PFOA is in the blood or vital organs of Atlantic
salmon, sword sh, striped mullet, gra seals, common cormorants, Alaskan polar bears, brown pelicans, sea turtles, sea eagles,
Midwestern bald eagles, California sea lions and La san albatrosses on Sand Island, a wildlife refuge on Midwa Atoll, in the middle of the
North Paci c Ocean, about halfwa between North America and Asia.
We see a situation, Joe Kiger sa s, that has gone from Washington Works, to statewide, to the United States, and now it s ever where,
it s global. We ve taken the cap off something here. But it s just not DuPont. Good God. There are 60,000 unregulated chemicals out there
right now. We have no idea what we re taking.
Bilott doesn t regret ghting DuPont for the last 16 ears, nor for letting PFOA consume his career. But he is still angr . The thought that
DuPont could get awa with this for this long, Bilott sa s, his tone landing halfwa between wonder and rage, that the could keep
making a pro t off it, then get the agreement of the governmental agencies to slowl phase it out, onl to replace it with an alternative with
unknown human effects we told the agencies about this in 2001, and the ve essentiall done nothing. That s 14 ears of this stuff
continuing to be used, continuing to be in the drinking water all over the countr . DuPont just quietl switches over to the next substance.
And in the meantime, the ght ever one who has been injured b it.
Bilott is currentl prosecuting Wolf v. DuPont, the second of the personal-injur cases led b the members of his class. The plaintiff, John
M. Wolf of Parkersburg, claims that PFOA in his drinking water caused him to develop ulcerative colitis. That trial begins in March. When
it concludes, there will be 3,533 cases left to tr .
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