If a company was infecting our bloodstream with chemicals that can never be broken down, should they be beholden to communicating this to consumers? Furthermore, should the public have the right to stop them? This is the fight that environmental lawyer Rob Bilott has been embroiled in for the last two decades. His journey in taking on the multi-billion dollar company DuPont for their haphazard contamination of an innocent West Virginian community–depicted in a New York Times article in 2016–is the basis for Todd Haynes’ thrilling new film, Dark Waters.
I am honored to be a guest on The Film Stage and have an opportunity to talk to one of our generation’s great activists; a man who will be studied in future science classes as the modern pioneer for human health and consumer product safety. As an environmental professional who is navigating the world of the emerging contaminant known as PFOA (or perfluorooctanoic acid / “C8”), I was eager to speak to the Cincinnati-based attorney about my greatest fear: that our government does not always have our back.
Over the course of the last four years, I’ve watched the New York State Department of Environmental Conservation attempt to navigate the human health crisis surrounding this and sister chemicals, collectively known as per- and polyfluoroalkyl substances (PFAS). PFAS are man-made chemicals, persistent in the environment, with properties that include resistance to oil, water, high and low temperatures, chemicals, and fire. Because of the useful nature of PFAS, they’ve become widely utilized in the manufacturing of many things, and may be found in products that you use daily, like deodorant, water-proof clothing, stain and fire retardant coatings on upholstered furniture and carpet, and much more. As revealed in Dark Waters, the chemical PFOA has been found in the blood of 99% of humans and even in the ice caps of Antarctica. They are everywhere. Also known as “forever” chemicals, they are bio-persistent, meaning they build up in one’s body and do not naturally break down in the environment.
Nearby my hometown in upstate New York, the community of Hoosick Falls has been afflicted by the medical repercussions of uncontrolled releases of PFAS from a nearby manufacturing company (St. Gobain/Honeywell). I began my early career in an environmental lab running compliance analyses on St. Gobain’s process wastewater, and I remember dreading analyzing their samples because of how toxically potent the odor was.
Flash-forward several years, I’ve been working in the environmental consulting field in New York City. My role in this world is multi-faceted, tied to environmental liability through due diligence prior to property acquisition, as well as remedial investigation and design. After years of working for clients that span the NYC municipal sector, Big Pharma, Class I rail, and private developers, I never thought that I was protecting the enemy or defending deep pockets. After seeing Dark Waters, my first feeling about Bilott was that he began his career doing just that. As played by Mark Ruffalo, he’s sold as a character that defends chemical companies. In speaking to Bilott about his role as a defense attorney, he thought that his work was as noble as I do–to keep manufacturers compliant.
The Film Stage: I wanted to talk to you about the work that you were doing before taking on the DuPont case. In the beginning of the movie, you just got promoted to partner and it is conveyed that you made your bones by poring over the Superfund Law. Can you describe the work that you were doing at that time?
Rob Bilott: Sure. I graduated from law school in 1990 and right out of law school I went to work for Taft, the law firm that you see in the movie and in fact I’m still there, 29 years. When I first joined they had an environmental group–which had two partners at the time, Tom Terp (who you see in the movie) and Kim Burke–and I had taken an environmental law course in law school and thought that it was kind of interesting. So I asked to join that group and really what I started doing from 1994 to the time you see when I first meet Mr. Tennant was working within that environmental group at Taft, helping our corporate clients, primarily corporate companies, a lot of chemical companies. A lot of what I was doing was Superfund work, where under the federal clean-up statute called CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act), or Superfund, you had different hazardous waste clean-up sites all over the country. I spent a lot of time going to these different sites and what I was doing was kind of researching the history of who sent what waste where, so I was working with a lot of these other companies as well, including, for example, in-house attorneys at DuPont, so I knew these people pretty well.
I think the movie paints you as this ‘former defense attorney of chemical companies,’ which could be seen as a negative. I know from my experience working in environmental remediation that a lot of the work is specifically for companies that might fit that mold as well, but the work that I do is to help guide those clients through regulations and make sure they are complying. Did you ever feel, before getting involved in this DuPont case, that the work you were doing was not virtuous in some way?
What I had been doing was trying to help our clients comply, trying to help them understand what the rules and regulations were. And the clients I was dealing with were trying to comply. I think during those first eight years I was learning this whole regulatory system–all the federal rules and regulations, all the corresponding state rules and regulations–and my perception was that there was a world in which the bad stuff is regulated and “listed.” As long as we know we are handling these things on this list in a certain way, we are doing what we need to do. I really was not aware of this world of unregulated chemicals. What you see in the film is that this is something I didn’t think of, this whole idea that there could be unregulated chemicals that were bad. My assumption is that if it was bad, it was going to be regulated. Then to realize that we were dealing with a situation where information existed but was being withheld, I had not run across that before. This was very different behavior than what we had seen before and you even see in the film, Tom Terp’s character, played by Tim Robbins, he says, “They’ve crossed the line here.” So I think what we are dealing with is a pretty egregious situation.
Agreed. So, in watching the film, did you feel it was a pretty accurate portrayal? I know so many details probably had to be cut out, but was the spirit of how the events went down portrayed accurately?
Yes, I think they did a fantastic job, as you put it, with the spirit of what happened and the pressures that were put on the members of the community, on the law firm, on everybody involved, really. We’re talking about a twenty-year time frame and I think they did a really good job in trying to capture the essential themes and moments in what was going on in all these different levels at the same time. But as you say, obviously you’ve got to select things in those twenty years.
In an attempt to understand how DuPont is being held accountable, not just financially for the medical damages, but also for the environmental damage that has been done–the groundwater impacts that negatively affect drinking water throughout the region and downgradient regions–do you know where DuPont stands with cleaning up the mess they’ve created? Or is that an ongoing battle?
That is ongoing. What you see in the film is the steps that were being taken just to be able to get to the point of addressing this argument that there’s no evidence that PFOA can cause harm to humans. And all that had to be done to confirm that yes, it can. We saw that in the documents and it was denied and then we had to independently confirm that yes, it does. Despite all of that, despite the biggest human health studies that have ever been done on a chemical, the chemicals are still not regulated on the federal level. They are not listed as hazardous, for example, under Superfund or CERCLA. They are not listed as hazardous wastes under RCRA (Resource Conservation and Recovery Act). You mentioned you know this world…
Yes, TCLP (toxicity characteristic leaching procedure). There is no TCLP limit for PFAS chemicals.
Correct. Because of that, we’re just at the tip of this issue with people just becoming aware this contamination exists. Steps are being taken to try and stop the ongoing contamination. Get it out of the water. Stop those exposures. There’s testing going on all over the country to try and find out where contamination exists and then put filters in. Let’s try to stop those exposures first. People are just now starting to focus on: how do we get rid of this? How do we get it out of the environment? And that’s active research right now to figure it out.
Yes, I think one of the things that is concerning is that when you don’t have a regulatory standard, there’s no motivator for remediating the environment.
I mean, there’s been no actual clean-up of this material outside of that Washington Works plant at DuPont. There’s been no active attempts to go out and start removing it or cleaning it up. Water filters have been put in to stop the exposure, but not environmental remediation.
Were you aware that one of the most common manufacturers of the granular activated carbon filters is DuPont? [The filters that clean PFOA from drinking water.]
I had heard that and had seen an article recently about that.
I know there is some confusion, frankly, as to who we are even referring to right now when we talk about DuPont. Because the DuPont that you see in the film spun off its entire Teflon division to Chemours right when these cases were going to trial, as you see at the end of the movie. What was left of DuPont then merged with Dow Chemical and has now split into three new companies, including one which is called The New DuPont, which claims to have not had any involvement with these materials. So it’s not clear who is even who at this point.
Yes, who is making money off of what?
There’s actual litigation between those companies, between DuPont and Chemours right now.
Because of liability associated with manufacturing?
Okay, interesting. So I know that 3M removed PFOA from their Scotch Guard product nearly twenty years ago. Do you think there is a need for this concern around PFAS to be extended into consumer regulatory jurisdiction? To have government oversight for the products we buy? What’s driving this question is that, for example, if I go into the field to collect surface water samples for analysis for PFAS, I’m instructed not to apply deodorant on that day and not even shower, and to not wear Gore Tex clothing, because these things may interfere or cross-contaminate our samples. The concentrations that we’re talking about as ‘concerning’ are so low that our clothing and personal hygiene products may adsorb into samples causing biased high analytical results. So do you think there’s a need to bring this concern around PFAS to the consumer level for products we use on a daily basis? For removing them from the shelves? Seems that if they are toxic to drink at these concentrations, then we shouldn’t apply them to our skin, or encapsulate our bodies in them.
Yes, and in fact there are a number of groups and coalitions and I think there will be a campaign announced in conjunction with the film as well, with a number of these groups, to try to educate people about these chemicals. As you indicated, 3M announced it would stop making PFOA and PFOS (polyfluorooctanesulfonic acid) back in 2000. And at that point, DuPont jumped in and started making PFOA after 3M got out of the market. Then finally after being sued by EPA, announced that they would stop making PFOA over the next ten years. Since then they brought out replacement chemicals like Gen-X and I think 3M is also focused on C-4 and C-6 chemicals so you have all of these additional PFAS chemicals that have come out on to the market, that are being used in a number of these products now, and are being claimed to be “safe” because they aren’t the C-8s, the PFOA or PFOS.
The ones they have been sued for.
Right, they are C-4 and C-6 chemicals or other types of PFAS. So there’s great concern that a number of these, and even some of the original material, may still be in a lot of these consumer materials, consumer products. So there are groups that are trying to educate people as to who has switched away from these. Which companies are no longer using these fluorinated materials? Which ones have switched to these alternatives? How can you avoid these if you want to? So I think a lot of that is sort of starting up now to help educate people so they can make choices; at least to know “if I choose to avoid this, I can,” because up to now we haven’t been given that choice. We haven’t been told, and so we’ve been exposed essentially without any consent or knowledge.
And in addition, it’s so integrated into so much more than we have control over. One of the sites that I’ve been connected with dealing with is impacted by firefighting foam. It just washes right into surface water and it impacts the surrounding community’s drinking water.
Yes, firefighting foam is a huge issue across the country right now. You’ve got military bases all over the world where the foam was used and purposefully sprayed out into the environment. Firefighters having been exposed, not only through their foam, but potentially through the coatings of their gear. You see it reported it in the media as if it is some emerging, new contamination. It is the knowledge that it’s there, which is new. This stuff has likely been there for quite some time. People are just now becoming aware because the testing is just now starting.
Yes, I sat in a New York State Business Council Meeting a year ago about emerging contaminants and a representative from American Chemistry Council made a statement during the meeting about how ‘we do not have enough data to support health-based risk criteria.’ It is frustrating, after seeing the film, as you said, we have more data on this than we have had on any other environmental contaminants.
I’m hearing those statements still to this day, which is why I’ve been very anxious to make sure that this information gets out. I’m so happy this movie is coming out, and the book as well, that will get information out to people that, ‘No, the science has been done–we have the biggest human health studies ever done on a chemical–that is there.’ To make these statements that we don’t have enough evidence yet, it’s manufacturing doubt. It’s, ‘Let’s continue perpetuating this concept that we don’t do anything because we just need more information and more information.’ On PFOA, at a minimum we have more than enough information, and hopefully when people see this they realize…
It’s time to get moving.
It’s time to move.
I wanted to ask you a political question in the context of the current administration. So like you said, this is not a new problem, but it’s being considered an emerging contaminant. It’s becoming something that the public is just now aware of. The wake of the story being at the time of our current Presidential administration under Donald Trump and his EPA appointment, Andrew Wheeler, have you seen that result in a negative or positive effect on progress in the area of PFAS?
You know, this particular issue with these chemicals, in my view, it’s not political at all. It’s not Democratic, Republican, red, or blue. This is clean water and it’s a problem, as you indicated, that has been existing and perpetuated throughout multiple administrations, Republican and Democrat. And throughout this entire period of time, we keep hearing the same thing no matter who is in charge. “We’re working on it. We’re gathering more information.” That has been continuing and even during this administration they announced an action plan. Well, an action plan was announced during the Obama administration in 2009 too. So, I mean, this problem transcends political parties. It is a bigger systemic issue with the way in which chemicals are regulated and the way in which we protect ourselves from chemicals in this country. I don’t think it’s a political issue in any way.
Do you think that capitalism is the issue then?
I think it’s more the issue of what’s the proper way to set up our system for protecting us from chemicals? Do we want the burden to be on the company that’s making something when that company knows ‘if we make this it will get into people and build up and stay there.’ Should there be a precautionary principle? We act and we try to do something to protect people from harm before it harms them and the people that create the harm should be the ones doing it. Or, do we do it, unfortunately, the way it is set up right now? The people who are being exposed are told, “You have the burden to prove that the chemical you are being exposed to is harming you. And, oh, by the way, you need to have tens of thousands or more people analyzed as part of your study or otherwise we are going to say you don’t have enough data.” And it will cost millions and millions and millions of dollars, which most people, if they are in that situation, if they are in an exposed community or they are in a small community like we see in West Virginia and Ohio, they are not going to have the resources to do that. So, who should have the burden here? And I think that’s a bigger debate that I think we ought to be having.
Dark Waters is now in limited release and opens wide on Friday, December 6. Rob Bilott’s new book Exposure: Poisoned Water, Corporate Greed, and One Lawyer’s Twenty-Year Battle against DuPont is now available. To learn more about how these issues are affecting your community and how you can take action, visit here.
Jenna Raup is an Environmental Science Manager at STV Inc. You can contact her on Twitter, where, as The Mrs. Film Stage, she periodically may grace us with her own opinions about the world of film.