Class Action – Part 2
The PFOA chemical at the heart of this Class Action lawsuit is Ammonium Perfluorooctanoate, commonly referred to as C8, C-8, or APFO. At this time in history, it is considered to be the PFOA derivative of greatest concern and with the most wide-spread use.
CAS No: 3825-26-1
Molecular Formula: C8-H-F15-O2.H3-N
Octanoic acid, pentadecafluoro-, ammonium salt
Ammonium perfluorocaprilate, Ammonium perfluorocaprylate, Ammonium perfluorooctanoate, Fluorad FC 143, Pentadecafluoro-1-octanoic acid, ammonium salt, Perfluoroammonium octanoate, Perfluorooctanoic acid, ammonium salt
Analysis of PFOA in the blood of people living near DuPont’s West Virginia plant had levels 12 times higher than U.S. background blood levels.
About the Teflon chemical PFOA
PFOA is not only used to manufacture Teflon, but is also a breakdown product of chemicals used to coat food packaging, including fast food like McDonald’s, and stain-resistant coatings for couches, carpets, and clothing. PFOA is broadly toxic. It does not break down in the environment, and is considered to be persistent over geologic time scales. It nearly universally pollutes human blood and has a half-life in the body of more than four years.
Ref: Environmental Working Group
On April 12, 2002, Judge George W. Hill of the Circuit Court of Wood County, West Virginia, granted citizens the right to proceed with a Class Action lawsuit against Dupont for the contamination of their drinking water with Ammonium perfluorooctanoate (C8) originating from DuPont’s Washington Works facility; and also against the Little Hocking Water Association for providing drinking water contaminated with C-8 to aproximately 12,000 residences and businesses in Washington County, Ohio.
This Class Action created a drama of Shakesperian proportion. The genesis of the Class Action arose from the allegation that DuPont’s dumping of C8 in its Dry Run Landfill in Wood County, West Virginia, was responsible for the “wasting disease” that killed cattle on a farm near the landfill in the 1980s. The information generated from the lawsuit against DuPont for the cattle deaths revealed that local drinking water supplies were contaminated with C8. According to a 2003 newspaper report:
… A mysterious wasting disease killed 280 cattle on the Tennants’ farm near the Dry Run Landfill in the 1980s. The cause of the cattle deaths were never conclusively associated with chemical contamination from DuPont, but the company settled with the Tennant family for an undisclosed amount in light of the allegations.
Jim and Della Tennant claim that family members who worked with the herd and lived near the property also began to fall sick with sinus and respiratory problems and skin and other cancers. And, when the Tennants asked their attorneys to look into the cause of the illnesses and pursue action against DuPont, C8 is what they found.
In 1984 they sold an adjoining portion of their land to DuPont and it became the Dry Run Landfill. They moved from the location within seven months, but maintain rental property at the site.
Jim Tennant claims a difference in the land was noticeable within a year of the landfill acquisition.
“Shortly after, there were no minnows in the stream. There were deer carcasses lying around, and things were dying,” Jim Tennant said. “There were problems.”
But, those weren’t the only problems the family would observe. After their herd of cattle began to die off, they claim the family members who worked with the cattle and lived near the farm were also becoming seriously ill.
… After 40 years of successful cattle ranching, they believe it was chemical contamination that devastated the herd within a span of 10 years.
The terms of the Tennants’ settlement remain secret, and as a result of that action, they are not eligible as class members in the pending C8 suit.
Ref: Examining the water we drink: Family’s lost herd led to revelations about C8.
By Callie Lyons. The Marietta Times (Ohio). September 27, 2003.
One resident in the Class Action spoke of her concerns about her 6-year old daughter:
“We thought her teeth came in without enamel,” Cochran said. Lauren had to have her teeth removed after they failed to develop properly. Recently Cochran has discovered that several other families in her area have experienced the same problem…
Ref: September 27, 2003. The Marietta Times (Ohio). Examining the water we drink: Concerns about C8 linger. By Callie Lyons
DuPont and West Virginia regulatory officials admit to destroying documents:
In a letter to the judge, DuPont acknowledged that Gerald R. Kennedy, the company’s lead toxicologist on C8 issues, had destroyed “written and electronic documents” about the chemical.
Ref: The Columbus Dispatch (Ohio). May 8, 2003. WEST VIRGINIA RULING. JUDGE: DUPONT CHEMICAL IS TOXIC. By Geoff Dutton.
… During her deposition on June 6 and 7,2002, [WV Department of Environmental Protection Science Advisor] Staats testified that she did not produce some documents in response to the Subpoena because she had destroyed or caused the destruction of certain documents which would otherwise have been subject to the Subpoena. During the hearing on June 12, 2002 counsel for Staats and the WVDEP [West Virginia Department of Environmental Protection] conceded that Staats and the WVDEP have destroyed and otherwise failed to save and preserve various records, documents, including drafts, correspondence, emails and other documents relating to the WVDEP’s investigation of C-8 all of which were subject to the Subpoena. Staats and the WVDEP further conceded that such destruction of documents and failure to produce in accordance with the Subpoena was the result of Staats and the WVDEP’s standard practice and policy of destroying documents they anticipate might be the subject of a subpoena in this litigation... – see more details below.
Ref: June 25, 2002. INJUNCTION ORDER DIRECTED TO DEE ANN STAATS, PH.D. AND THE
WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION.
The president of the Environmental Working Group, Kenneth A. Cook, wrote to the Governor of West Virginia about Department of Environmental Protection science adviser Dee Ann Staats stating she “made a career as an expert witness testifying against the concerns of communities fighting chemical and oil company pollution prior to coming to work for the state of West Virginia.” Ref: March 13, 2003. Charleston Gazette (West Virginia). C8 Study ‘Tainted,’ Group Says Governor Urged to Appoint an Independent Panel. By Ken Ward Jr.
DuPont’s revolving door for their lawyers on C8 issues. They now work for the West Virginia Department of Environmental Protection:
It has come to our attention that Joe Dawley. formerly with the law firm of Spilman
Thomas & Battle in Charleston. West Virginia. accepted the request of WVDEP’s [West Virginia Department of Environmental Protection] Secretary, Michael Cailaghan. to become thenew General Counsel for WVDEP… As you are aware. Mr. Dawley was working as one of the attorneys representing E.I. duPont de Nemours and Company (“DuPont”) in connection with ongoing C-8 issues and in defense of the claims asserted against DuPont in the referenced lawsuit. In particular, you may recall that Mr. Dawley represented DuPont in at least one meeting between WVDEP and Plaintiffs in the referenced lawsuit to discuss issues relating to WVDEP’s compliance with the Wood County’s Circuit Court’s Order prohibiting WVDEP from destroying any C-8 documents and requiring WVDEP to try to retrieve electronic documents previously deleted from Dr. Dee Ann Staats’ files. Mr. Dawley also appears to have had some Ievel of involvement while at Spilman in assisting DuPont in the negotiation and drafting of the November 2001 Consent Order entered between the State and DuPont on C-8 matters ( the “Consent Order”). (See Attachment B) We understand that Mr. Dawley was approached by Secretary Callaghan to become General Counsel for WVDEP while Mr. Dawley was working at Spilman. We further understand that another former Spilman lawyer, Stephanie Timrnermeyer, also
recently left that law tirm to accept the position as Director of WVDEP’s Division of Air Quality
after Ms. Timmermeyer also had been working directly for DuPont on C-8 issues and also
apparently had worked for DuPont in negotiating and drafting the Consent Order… We understand that the Director of WVDEP’s Division of Water resources. Allyn Turner also is a former Spilman attorney…
Ref: October 25, 2002. Letter from Robert A. Bilott of Taft, Stettinius & Hollster, 425 Walnut Street, Cincinnati, Ohio 45202; to Perry D. McDaniel, Esq, West Virginia Department of Environmental Protection, Office of Legal Services, 1356 Hansford Street, Charleston, WV 25301. Re: DuPon/C-8 Issues: Jack W Leach. et al. v. E. I. duPont de Nemours and Company and Lutbeck Public Service District Circuit Court of Wood Ctv, K’V. Civil Action No. 0 1 -C-608.
Note: Timmermeyer and Dawley have both recused themselves from C8 issues at DEP. Ref: March 13, 2003. Charleston Gazette (West Virginia). C8 Study ‘Tainted,’ Group Says Governor Urged to Appoint an Independent Panel. By Ken Ward Jr.
Regulators protect Dupont with a “safe level” of C8 in drinking water.
The “safe level” standard for C-8 has been a rather fluid number that periodically increases exponentially. Initially, the “safe level” was said to be 1 ppb, which was DuPont’s internal Community Exposure Guideline. This number eventually changed after detections of C-8 in the Little Hocking Water Association wells far exceeded it. Later, the U.S. EPA Consent Order with DuPont cited 14 ppb as the interim “action level” for C-8. The Little Hocking Water Association has a monitoring well which has C-8 levels that are more than twice 14 ppb. Now, based on the announced CAT Team findings, the “safe level” is 150 ppb.
Ref. and see for more detail: LITTLE HOCKING WATER COMMENTS. OHIO ENVIRONMENTAL PROTECTION AGENCY MEETING. COLUMBUS, OHIO. July 24,2002.
Also see analysis by Kristina Thayer, Ph.D. of the Environmental Working Group
Some of DuPont’s practices at its West Virginia facility identified for contaminating the area’s drinking water supplies:
The Letart Landfill is located just north of the town of Letart in Mason County, West Virginia (Figure 4.0). The landfill covers approximately 17-acres of a 205-acre parcel of land owned by DuPont Washington Works. It was in operation firom the early 1960s to 1995. The landfill was operated and closed under West Virginia Solid Waste /National Pollutant Discharge Elimination System Permit No. WV 0076066. Letart Landfill received waste was from the Fluoropolymcr manufacturing process at the plant that consisted primarily of scrap product, scrap metal, wood pallets and bins, and miscellaneous trash. Approximately 5,000,000 pounds of waste per year were disposed in the landfill. This waste is believed to be the source of C-8 in the historical groundwater and surface water samples collected fiom on-site locations. The Letart Landfill was permanently closed by installing an engineered multi-layer geosynthetic and soil cap (DuPont, 2001).
The Dry Run Landfill is located west of the town of Lubeck, in Wood County, West Virginia (Figure 5.0) and is about eight miles southwest of the Washington Works main plant and the Local Landfill. The Dry Run Landfill covers approximately 17-acres of a 535-acre parcel of land owned by DuPont. The landfill began operation in 1986 and is still active at present. The landfill is operated under West Virginia Solid Waste /National Pollutant Discharge Elimination System Permit No.WV 0076244. The landfill was constructed within the drainage basin of Dry Run, a tributary of the North Fork of Lee Creek, which is a tributary of the Ohio River. The Dry Run Landfill has no compacted or synthetic bottom liners. However, natural soil present under the landfill material is composed of clay and weathered shale. The Dry Run Landfill receives waste from the main plant consisting of non-hazardous waste including scrap product, scrap metal, wood pallets, fly ash and bins, and miscellaneous trash. Approximately 50,000,000 pounds of waste per year have been disposed in the landfill. Currently, the C-8 source is believed to be the sludges from the closure of the main plant anaerobic digestion ponds that were landfilled at Dry Run in 1988. The Dry Run Landfill remaining capacity calculations for 2001 show 4.4 years of remaining life on the existing cell based on a 128,000 yd3/yr net fill volume consumption (DuPont 2000).
Riverbank Landfill: The Riverbank Landfill is about 4,500-feet long and lies along the northern edge of the site near the Ohio River. It was operated between 1948 and the late 1960s and received powerhouse ash, incineration ash, plastics, rubble, and plant trash. After closure, it was covered with 6 to 35 inches of soil. Currently, the Riverbank Landfill is covered with dense vegetation (on the sloped area) or by buildings and pavement in the manufacturing area.
Anacrobic Digestion Ponds: Three former digestion ponds are co-located within a portion of the Riverbank Landfill. One pond dates from the 1950s and two others from the 1970s. The ponds received waste from the fluorocarbon manufacturing process (including C-8) until 1988, when the pond contents and upper few feet of clay liner and pond berm material were removed and disposed of off-site. The pond area was backfilled and capped with topsoil, and the area is currently vegetated with grass.
Polyacetal Waste Incinerators: The former Waste Incinerators consisted of two brick-lined pits in the western portion of the manufacturing area. The Waste Incinerators operated between 1959 and 1990. The Waste Incinerators have been excavated and backfilled with clean soil.
Burning Ground: The Burning Ground is located in the central portion of the manufacturing area and was operated between 1948 and 1965. Since 1990, the Burning Ground has been leveled, backfilled with clean fill and gravel, and covered by buildings and asphalt.
The Local Landfill is located immediately adjacent to the main plant off the southern perimeter. The Local Landfill consists of three separate closed cells located on the heavily wooded 250-acre site. The cells were operated from 1964 to the middle 1380s under West Virginia/National Pollutant Discharge Elimination System (WVNPDES) Permit No. 0076538. The permit is currently undergoing renewal and is expected to be effective in January 2002. Materials landfilled included scrap product, scrap metal, wood pallets and bins, and Powerhouse ash. Approximately 144 tons of waste per year were disposed in the landfill. Powerhouse ash comprised about 70 percent of the total waste. The specific source of C-8 in historical groundwater and surface water samples collected from on-site locations has not yet been determined. The cells were closed and covered with approximately two feet of low permeability soil.
Ref: January 2002. DuPont. COMPILATION OF HISTORICAL C-8 DATA.
DUPONT WASHINGTON WORKS MAIN PLANT AND LANDFILLS. Project KO: D6WW7423. (171 pages)
DuPont’s description of APFO (C8) Use:
DuPont uses APFO as a reaction aid in the production of polytetrafluoroethylene (PTFE) and tetrafluoroethylene (TFE) co-polymers. The process utilized at DuPont’s Washington Works for making PTFE and co-polymers consists of polymerizing TFE (and other co-monomers if desired) in an aqueous media with a small amount of APFO to aid in the reaction.
Following the polymerization step, the polymer dispersion is either dried to remove water and APFO or concentrated (removing some of the APFO), stabilized and sold as an aqueous dispersion. The dried polymer contains very little, if any, APFO. The APFO removed from the polymer is recovered for recycle, captured and destroyed off site in an incinerator, captured and sent to an offsite industrial landfill, and/or emitted to air or water at the Washington Works. The stabilized polymer dispersions are sold by DuPont to industrial customers (both in the US and outside the US) for a variety of uses, internally transferred to the DuPont Spruance Plant for the production of Teflon@ fibers and PTFE coated synthetic fibers, or internally transferred to the DuPont Parlin Plant for the production of Teflon@ Finishes. A small amount of non-hazardous waste polymer, water, APFO and other additives generated at Washington Works is treated in a wastewater treatment facility at DuPont’s Chambers Works. This material is either emitted in the Chambers Works water discharge or captured on carbon and landfilled in a secure landfill. The internal process at the DuPont Spruance Plant to produce Teflon@ fibers involves, for most of the product, a “sintering” step in which the APFO contained in the product is destroyed by the following reaction: CF3(CF2)6C0O’NH4+ -arrow- CF3(CF2)5CF2H + C02 +NH3
Ref. and see for more detail: Voluntary Use and Exposure Information Profile Ammonium Perfluorooctanoate (APFO) (revised January 2001).