Summary of Teflon Related TSCA 8(e) Action Against DuPont

But one can calculate the potential fine, based on the multi-year duration of the violation, and the maximum allowable fine per day under the law. The total is a staggering $313 million, which, if assessed, would be 10 times larger than the maximum fine ever assessed by the agency. Or, in an option that appears increasingly likely, the company could walk away with no more than a slap on the wrist, depending on the political will of the administration.

Breaking the law: A good business decision — so far. The story of how DuPont landed itself in the frying pan with EPA is one of deliberate corporate malfeasance made possible by gaping holes in the public health safety net for toxic chemicals. This loophole ridden system lets chemical companies decide what, if any, safety tests to perform, and when, if ever, to tell public health and environmental officials about the results.

The data withheld by DuPont for 20 years could very well have altered the destiny and profitability of Teflon and related products dramatically, had they been reported in 1981. EPA lawyers say as much in the agency's complaint against DuPont, noting that the EPA's current effort to characterize the risk from PFOA, "...might have been more expeditious had the data on transplacental movement of the chemical in humans been submitted immediately by DuPont when DuPont obtained the information in 1981." Instead, C8 did not come under regulatory scrutiny at the EPA until 2003, gaining DuPont more than two deades of multi-hundred million dollar annual profits, while guaranteeing contamination of the entire planet with Teflon chemicals, now recognized as persistent global pollutants that nearly universally pollute human blood.

Two decades of malfeasance. In the early 1980s DuPont scientists at the company's Parkersburg, West Virginia Teflon plant discovered startling evidence that a key Teflon ingredient had contaminated local drinking water supplies, and that babies of plant workers had a Teflon ingredient in their blood and were born with birth defects of the eyes and nostrils.

The studies sent the company scrambling as executives abruptly confronted the reality that a key ingredient in their signature Teflon product line was in human fetal cord blood and in every glass of tap water drawn in two local towns. Female workers were pulled from the production line, outside consultants were hired to find holes in the studies, and clandestine tap water testing programs were expanded to the next ring of surrounding communities.

But then, inexplicably and just as abruptly, the studies were scuttled. DuPont kept the troubling studies secret. Local communities were not told about the tap water contamination. Government officials were not notified. Women were allowed back on the production line. And over the next two decades, the documents and test results, stashed away in company filing cabinets, may have been forgotten by all but just a small group of company officials and scientists.

Now these studies have come back to haunt DuPont. In a local lawsuit over what was initially thought to be newly-discovered C8 contamination in tap water, the documents surfaced during discovery. And in early 2003 the Environmental Working Group began scouring the pages, piecing together the chain of events that in their entirety constitute a near 20-year cover-up at DuPont.

It became clear as we dug further into the evidence, that DuPont not only broke trust with local communities and employees, but also broke the law when it withheld from the government and the public the extraordinary findings in their tap water and birth defects studies.

On April 11 2003 the Environmental Working Group petitioned the EPA to investigate evidence that DuPont violated federal law in failing to report the data to the federal government under a provision of the Toxics Substances Control Act called section 8(e) that requires immediate reporting of finding that show a "substantial risk of injury to health or the environment."

Over one year later, on July 8 2004, the Environmental Protection Agency wrapped up its investigation of the charges, filing a complaint that finds DuPont guilty of breaking the law on three counts, and impeding the agency's ability to assess public health threats from a chemical in common use for 50 years. Such a safety assessment is only now being conducted in the form of an official agency review that EPA has touted as the most significant such review in the agency's history. DuPont, in the meantime, has garnered 20 years of profit from the sale of Teflon products, a line that nets them an estimated $200 million every year.

A system hardwired to fail. EPA's case against DuPont illustrates the fact that without strict enforcement of reporting requirements by the EPA, the current industry-driven system is bound to fail, particularly when highly profitable chemicals are on the line. Chemical companies have no incentive, and as this case shows, cannot be trusted to act in the public interest when it comes to reporting troubling test results on high profile, brand name products or their ingredients.

DuPont even failed to report these data during an amnesty period under the first Bush EPA in 1991. Recognizing that companies were almost certainly not reporting data as required under section 8(e) of TSCA, the first Bush EPA waived all fines and penalties for all adverse effects data on any chemical, if companies would willingly come forward with the data. DuPont still did not submit the data that are the subject of the EPA's complaint.

EPA findings against DuPont. The three counts EPA has laid out against DuPont are detailed below, referenced to the relevant paragraphs in EPA's complaint. The maximum fine that the Agency could assess for the three counts is $313 million. The calculations of fines associated with each count are detailed below, and are based on EPA's determinations on the duration of the violation, and the maximum allowable daily penalty under the law.

EPA Count 1 against DuPont: EPA found that DuPont violated federal law, Section 8(e) of the Toxics Substances Control Act (TSCA), by failing to inform EPA about the company's Teflon ingredient polluting human cord blood. This provision of TSCA requires that a company notify the Administrator within 15 days of findings that support a reasonable conclusion of a substantial risk of injury to human health or the environment and carries a maximum penalty of $183.8 million. According to EPA:

"The Agency considers the human blood sampling information confirming transplacental movement of PFOA [the Teflon ingredient] to reasonably support the conclusion of a substantial risk of injury to health or the environment." (paragraph 47)

"DuPont's failure to immediate inform EPA about the information concerning [Teflon ingredient contaminating human cord blood] constitutes a violation of TSCA Section 8(e)..." (paragraph 46)

"DuPont's failure or refusal to submit the human blood sampling information as required under TSCA Section 8(e) is an unlawful act..." (paragraph 52)

The fine for this violation could total $183.8 million:

Calculations

Duration of violation:
June 15, 1981 — March 6, 2001

Daily fine from June 15, 1981 through January 30, 1997
$25,000/day

Fine through Jan 30 1997 = (5708 days) x ($25,000/day)
$142.7 million

Daily fine from February 1, 1998 through March 6, 2001
$27,500/day

Fine from Feb 1 1998 through Mar 6 2001 = (1496 days) x ($27,500/day)
$41.1 million

Total Count 1 fine
$183.8 million

EPA Count 2 against DuPont: EPA found that DuPont violated federal law, Section 8(e) of the Toxics Substances Control Act, by failing to inform EPA about the company's Teflon ingredient polluting local drinking water supplies surrounding the company's Parkersburg, West Virginia plant. This finding carries a maximum penalty of $91.6 million. According to EPA:

"[Finding of Teflon ingredient in tap water supplies] indicate a substantial risk of widespread exposure to a chemical at a level of concern that requires informing the Administrator immediately." (paragraph 64)

"The Agency considers the information concerning the contamination of the public water supply to reasonably support the conclusion of a substantial risk of injury to health or the environment." (paragraph 73)

"DuPont's failure or refusal to immediately submit to the Administrator its understanding that the C-8 [PFOA, the Teflon ingredient] contamination extended into people's homes at levels approaching and exceeding its Community Exposure Guideline for water as required under TSCA Section 8(e) is an unlawful act..." (paragraph 78)

The fine for this violation could total $91.6 million:

Calculations

Duration of violation:
July 24, 1991 — March 6, 2001

Daily fine from July 24, 1991 through January 30, 1997
$25,000/day

Fine through Jan 30 1997 = (2,017 days)*($25,000/day)
$50.4 million

Daily fine from February 1, 1998 through March 6, 2001
$27,500/day

Fine from Feb 1 1998 through Mar 6 2001 = (1496 days)*($27,500/day)
$41.1 million

Total Count 2 fine
$91.6 million

EPA Count 3 against DuPont: EPA issued a Notice of Deficiency on May 5 1997 in DuPont's efforts to renew a site permit, requesting that DuPont submit to the agency all known toxicological information on the Teflon ingredient PFOA (C8). DuPont failed to submit data from its birth defects study. EPA found that this constitutes a violation of reporting requirements under the Resource Conservation and Recovery Act. This finding carries a maximum penalty of $37.6 million. According to EPA:

"Neither in its Response to the Notice [requesting additional health data for hazardous waste permit renewal from EPA] in June 1997, nor at any other time, did Respondent provide to EPA the information regarding the transplacental movement of C-8 in humans." (paragraph 101)

"...[DuPont] violated [provisions of the Resource Conservation and Recovery Act] by failing to provide the known toxicological information on C-8 [on transplacental movement of the chemical]." (paragraph 106)

The fine for this violation could total $37.6 million:

Calculations

Duration of violation:
June 6, 1997 — March 6, 2001 (1369 days)

Daily fine:
$27,500/day

Fine (1369 days)*($27,500/day):
$37.6 million

Total Count 3 fine:
$37.6 million