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Did the EPA Move the Goalposts to Fine DuPont?
January 31, 2006
Trevor Butterworth
A must-read article for journalists and policy makers from the New York Law Journal

The ongoing coverage of chemical giant DuPont, and the question of risk posed by a chemical, Perflurooctanoic Acid (PFOA), which is used in the manufacture of Fluropolymer coatings such as Teflon, highlighted a fine of $16.5 million dollars imposed by the Environmental Protection Agency (EPA) in December 2005 for the company's failure to disclose health risk information on PFOA.

For example, the way the Los Angeles Times framed this fine in a recent editorial gives the impression of hero (EPA) and villain (DuPont):

"Last year, the EPA went aggressively after DuPont Co., saying the chemical powerhouse that pioneered the use of PFOA had been hiding the substance's health risks for close to 25 years and had failed to report that PFOA had seeped into residential water supplies in Ohio and West Virginia. DuPont agreed last month to pay the largest administrative fine in the EPA's history: $16.5 million."

Slate went a step further in its January 26 edition of Today’s Papers, when it told readers that DuPont was fined for “systematically suppressing information that established the toxicity of the chemical, perfluorooctanoic acid.”

One might be inclined to think that a fine is a brute fact, impervious to points of view - or even a context that calls its application into question. But as a recent article Disclosure on Trial: "Substantial Risk" Reporting Requirements (follow the internal link) in the New York Law Journal points out,

"the thrust of the EPA's enforcement action against DuPont was that evidence that a community is being exposed to a chemical triggers "substantial risk" reporting, even if exposure is below bench-mark risk based standards."

In other words, DuPont was fined not because it failed to disclose information that showed an actual risk to the public, but because there was a "significant change in the agency's position as to the scope of the statutory duty to disclose 'substantial risk' information," according to the authors of the article, Philip E. Karmel and Peter R. Paden, who are partners at Bryan Cave LLP.

Prior to the DuPont case, the EPA's policy on disclosure (established in a 1978 policy document) did not require companies to report exposure levels to chemicals that are below EPA-set benchmarks. And as the article notes, DuPont believed it had fully complied with the EPA's statutory requirements. The EPA, however, leveled three complaints against DuPont for:

* The failure to report a sample of umbilical cord which showed trace concentrations of PFOA. The mother was a DuPont employee.

* The failure to report data showing drinking water wells had PFOA levels that exceeded DuPont's internal community exposure guideline of one part per billion (ppb).

* The failure to report a test showing that 12 people tested in the vicinity of a DuPont plant had elevated levels of PFOA in their blood.

In each case, as Karmel and Paden point out, there were logical reasons for non-disclosure. For example, the levels of PFOA in well water (between 0.8ppb and 3.9ppb) were "more than an order of magnitude lower than the 150ppb concentration level established as posing 'no risk of deleterious [health] effects by a panel of scientific experts, including three EPA scientists and a scientist from the federal Agency for Toxic Substances and Disease Reigistry."

The authors contend that if this broadening of disclosure requirements withstands legal challenge, there is a strong likelihood that the mere fact of more information being disclosed under the rubric of "substantial risk" will trigger an increase in tort litigation, regardless of whether this information shows any real risk to public health.

None of this was mentioned in the media coverage of DuPont’s travails. The Los Angeles Times editorial page, however, applauded the EPA’s recent decisions on DuPont and PFOA, saying that it was good “to see the agency back in action.”

But how are we to judge when the press fails to report what the EPA actually did and what it meant? There’s an irony there, but unlike DuPont, there are no penalties or fines for journalists failing to give all the facts.