A lawyer who has become a DuPont nightmare
- Transfer
Rob Bilot has been a corporate lawyer for eight years. Then he took up an environmental lawsuit that turned his whole career upside down - and uncovered a shameless history of chemical pollution that lasted for decades.
Just a few months before becoming a partner in the law firm Taft Stettinius & Hollister, Rob Bilot answered a phone call from a farmer involved in cattle breeding. Farmer Wilbur Tenant [Wilbur Tennant] from Parkersburg in West Virginia told me that his cows are dying. He decided that the cause was the chemical company DuPont, which until recently had been running on the site in Parkesburg, which is 35 times larger than the Pentagon. Tenant tried to enlist the help of local authorities, but DuPont had the whole city in his pocket. His requests with contempt were rejected not only by the lawyers of Parkersburg, but also by his politicians, journalists, doctors and veterinarians. The vexed farmer spoke with a strong accent that betrayed him a resident of the Apalachia region. Bilot tried to understand what the farmer said. He might have hung up, did not mention the farmer of the name of the grandmother of Belote, Alma Holland White.
White lived in Vienna, the northern suburb of Parkersburg, and as a child, Bilot often visited her in the summer. In 1973 she took him to a cattle farm to the neighbors of Tenant, Graham, with whom she was friends. Bilot spent the whole weekend riding horses, milking cows and watching on TV like the famous horse The Secretariat won the Triple Crown race . He was seven years old, and this trip to Graham's farm was one of the happiest memories of his childhood.
When Graham found out in 1998 that Wilbur Tenant was seeking legal assistance, they remembered Bilot, the grandson of White, who grew up and became an environmental lawyer. But they had no idea that Bilot belonged to another kind of lawyers. He did not represent individuals or plaintiffs, but along with 200 other lawyers at Taft, founded in 1885 and historically associated with the family of the 27th President of the United States, William Howard Taft , worked for large corporate clients. He specialized in protecting chemical companies. Several times Bilot even worked with DuPont lawyers. However, as a service to his grandmother, he agreed to meet with the farmer. “It seemed to me that it was right,” he says today. “I felt connected to these people.”
But at the first meeting, this relationship was not traceable. A week after the telephone conversation, Tenant arrived from Parkersburg with his wife at Taft headquarters in a suburb of Cincinnati. They dragged boxes with videotapes, photographs and documents into the glass reception desk of the company on the 18th floor and sat down on fashionable couches under the oil-painted portrait of one of the founders of Taft. Tenant - burly, growing almost 180 cm, in jeans, a plaid flannel shirt and a baseball cap - did not resemble a typical Taft customer. “Let's just say, he appeared in our office, unlike the bank's vice president,” says Thomas Terp, a partner of the firm who was the former supervisor of Bilotte.
Turp was present at the meeting with Bilot. Wilbur Tenant explained that he and four relatives had run a livestock farm since their father left them. Then they had seven cows. Over time, they constantly increased land and livestock, and as a result more than 200 cows grazed on 600 acres of hilly terrain. And the farm would have been even more if his brother Jim and his wife Della had not sold 66 acres of DuPont in the early 80s. The company needed land for a landfill site for its factory, located next to Parkersburg under the name of Washington Works, where Jim worked. Jim and Della did not want to sell the land, but Jim had long been in poor health due to a mysterious disease that the doctors could not diagnose, and they needed money.
DuPont renamed the site to Dry Run Landfill in honor of the Dry Run stream flowing through it. The bed of the same stream followed to the pasture where the Tenants were pasturing their cows. Shortly after the sale, Wilbur reported to Bilotte, the cattle began to behave strangely. Tenants have always treated their livestock as pets. At the sight of one of the Tenants, the cows ran up to him, sniffed and freely allowed themselves to be milked. But now everything has changed, and the cattle began to attack the farmers.
Wilbur put the cassette into the video recorder. The recording made on the portable camera was grainy and interrupted by static. The picture jumped and repeated. The sound accelerated and slowed down. The quality of the recording was like a horror movie. At first, a stream was shown on the video. It flows out of the surrounding forest, with ashen-white trees shedding its foliage around it. Then the camera showed a shallow bed of the stream and stopped at a place resembling a snowdrift on a bend. When driving the camera to this place, it became visible a hill of foam, similar to soap.
“I dragged off two dead deer and two dead cows from this sandbank,” says Tenant in camera recording. - They had blood on their mouth and nose. They are trying to hush up this thing. But nothing will come of them, I will pull them out into the light so that everyone can see. ”
The video shows a large pipe that goes into the stream, from which a green bubbling liquid flows. “This is what they want the cows that belong to a man to drink while they are in his own land,” says Wilbur. “It’s time to throw the heads of all public services from their places.”
At some point on the video appears skinny red cow standing in the hay. Her hair fell in some places, and her back is hunched over - Wilbur thinks that it’s all about kidney problems. For the next static on the video should be an image of a dead black calf with bright blue eyes, lying in the snow. “I have already lost 153 livestock on this farm,” Wilbur says on video later. “Not one Parkersburg veterinarian who I called does not call me back and does not want to contact me.” Since they do not want to do this, I will have to conduct an autopsy myself. I'll start with the head.
Then the opened calf's head appears on the video. Blackened teeth ("It is said that this is due to the high concentration of fluoride in drinking water"), its liver, heart, stomachs, kidneys and gall bladder are shown large. All organs are cut, and Wilbur demonstrates their unnatural colors — dark, greenish — and texture. “I don’t like what they look like. I've never seen anything like this before. ”
Bilot watched videos and photos for several hours. He saw cows with skinny tails, improperly grown horns, enormous size tissue lesions on the sides, red eyes. Cows suffering from persistent diarrhea, with mucous white saliva with consistency of toothpaste, with crooked legs. Tenant always made hitting the camera on the eyes. “This cow suffered for a very long time,” he said, while her eyes were visible on the screen.
“It's terrible,” said Belote. “Something terrible is happening there.”
He immediately decided to take up the case of Tenant. He repeats that it was "right." Bilot might have looked like a corporate lawyer — with a quiet speech, thin, conservatively dressed — but this job was not easy for him. He did not have a typical Taft employee resume. He did not attend college from the " Ivy League"His father was a lieutenant colonel of the Air Force, and Bilot spent most of his childhood moving between different Air Force bases - New York, California, West Germany. He changed eight schools before graduating from Fairborn High, near Ohio Air Force Base. At school, he received an invitation from a small liberal arts college in Sarasota, called the New Florida College, which set off credits instead of grades and allowed pupils to independently draw up a curriculum. Many of his friends there were idealists and progressive thinkers. This did not fit the Reagan policy in the US. He talked one-on-one with professors and began to appreciate critical thinking. "I learned to question everything I read," he says. "Not to believe anything. Ignore someone else's opinion. I liked this philosophy". Bilot studied politics and wrote a thesis on the rise and fall of Dayton. He hoped to get a job in the city administration.
But his father, at a mature age, entered the law and encouraged him to do the same. He surprised his teachers by choosing to visit Ohio Law School, and his course on environmental law was his favorite course. “It seemed that this topic would help influence the real world,” he says. “It was something that would help you change the world.” After graduation, when Taft made him an offer, his mentors and friends were stunned. They did not understand how he could go to work as a corporate lawyer. But Bilot did not think about it from this point of view and did not appreciate the ethics of such an act. “In the family, everyone told me that the most opportunities can be realized in a large firm. I did not know anyone who would ever work in such a company, and no one who could tell me about this work. I was just trying to do my best. I just didn't understand
At the company, he was asked to join the Thomas Terps environmental management team. Ten years earlier, Congress passed the Superfund law. The fund financed urgent clean-ups of places where the release of harmful substances occurred. The superfund was profitable for companies such as Taft, it created a separate area of activity within environmental laws, which required a good understanding of the latest bills for negotiations between municipal services and various private interests. Terp's team at Taft was leading the way.
As an assistant, Bilota was asked to determine which companies were responsible for the release of which toxins and harmful wastes, in what quantities and at which sites. He took applications from factory workers, studied public records, sorted historical data. He became an expert on the platform of the Environmental Protection Agency, the law on drinking water safety, the law on clean air, the law on the control of toxic substances. He perfectly mastered the chemistry of pollutants, despite the fact that he did not have time for chemistry in school. "I studied the work of companies, laws, protection principles," he says. He became a qualified and knowledgeable lawyer.
The road to one of the farms of the Tenants
Bilot was proud of his work. Its main part, in his opinion, was to help customers in compliance with the new regulations. Many of his clients, including the companies Thiokol and Bee Chemical, disposed of toxic waste long before strict regulations were adopted in this area. He worked hard and met several people from Cincinnati. One of his colleagues, seeing that he had no time for socialization, introduced him to his childhood friend Sarah Barladge. She also worked as a lawyer in another firm from Cincinnati, acted as a corporate defender in compensation claims cases in favor of their employees. Bilot accepted the offer to have dinner together. Sarah says she doesn’t remember him saying anything. “My first impression was about him as unlike the other guys,” she says. - I myself talkative, he is silent a lot.
They got married in 1996. The first of three sons was born two years later. Bilot felt confident enough at work so that Sarah could quit and devote all her time to taking care of children. Terp remembers him as an "outstanding lawyer: very intelligent, energetic, tenacious, and extremely thorough." He was the ideal lawyer Taft. And then Wilbur Tenant appeared.
The Tenants case put the Taft in an unusual position. The firm represented the interests of chemical corporations, and not suing them. The prospect of fighting DuPont "made us think about it," admitted Turp. “But deciding on this was not so difficult. I believe that our work on the side of individuals improves us as lawyers. ”
Bilot turned for help to a lawyer from West Virginia named Larry Winter. For many years, Winter was a partner at Spilman, Thomas & Battle - one of those who represented DuPont in West Virginia - and then he quit and started his own practice in the field of injury. He was amazed that Bilot was going to sue DuPont, working for Taft.
"The fact that he took the case of Tenant," said Winter, "considering what they were doing at Taft, seemed something unimaginable."
Bilot himself reluctantly discusses the motives that prompted him to get down to business. He came closest to this issue when he was asked if he had any concerns about how his career developed, given that his initial impulse was “to change the world.” “There was a reason why I became interested in the Tenants case,” he replied after a while. “It was a great opportunity to use my experience to help people in real need.”
Bilot sued DuPont in the summer of 1999 in the southern region of West Virginia. In response, the company's own lawyer, Bernard Reilly, said that DuPont and the United States Environmental Protection Agency (EPA) would order a study of the area conducted by three veterinarians selected by the company and three doctors appointed by the EPA. found DuPont guilty of cow health problems. They blamed poor cow care, poor nutrition, poor veterinarians, and insect control. In other words, the Tenants were accused of not being able to care for the cattle. They were to blame for the death of livestock.
Tenants were not in vain, and because of their quarrel with the town-forming enterprise, they started having problems. Longtime friends refused to communicate with them, and left the restaurants, which included the Tenants. "I am forbidden to talk to you," they said, being called to a conversation. Four times Tenant had to change the church.
Wilbur almost daily called the office, but Bilot could not please him much. For the Tenants, he did the same thing that he would do for any corporate client - he studied permits, land transactions, requested DuPont documentation on the sites - but could not find evidence explaining what was happening with the livestock. “We began to despair,” says Belote. “I could not blame the Tenants for being angry.”
On the threshold of the trial, Bilot stumbled upon a letter sent by DuPont to the EPA, where a substance with the mysterious name “PFOA” was mentioned in connection with the dump. Having worked with chemical companies for so many years, Bilot has never met such an abbreviation. She was not in any list of substances subject to regulation, and even in the internal library of Taft. The chemistry expert, in response to his request, recalled that he had seen an article about a compound with a similar name somewhere, PFOS, a soap-like substance used by 3M conglomerate for making water-repellent Scotchgard compounds.
Bilot scanned his files for PFOA mentions, and found out that it was short for perfluorooctanoic acid. But there was no data for it. He requested relevant documents from DuPont, but she refused to issue them. In the fall of 2000, Bilot requested an order from the court to receive these documents. Warrant issued, despite the protests of the company. And dozens of boxes with hundreds of unorganized documents began to arrive at Taft. There was a private correspondence, medical reports, confidential research conducted by the company's scientists. A total of 110,000 pages were sent, some of which were already 50 years old. The next few months, Bilot spent on the floor of the office, rummaging through documents and laying them out chronologically. He stopped responding to calls, and his secretary answered that although he was in the office, he could not reach the phone on time because he was surrounded by boxes.
“I began to see a story,” says Bilot. - Perhaps I am the first person to study these documents. It became clear what was happening: they had been aware for a very long time that this substance was very harmful. ”
Bilot put it very gently. As his colleague Edison Hill said, “to say that Rob Bilot then put it mildly means to speak too softly.” Before the eyes of the Bilot, who was sitting on the floor, cross-legged, a story began to emerge that was amazing in scope, uniqueness and shamelessness. “I was shocked,” he says. And this, too, was an understatement. Bilot could not believe the extent of incriminating materials from DuPont. It seemed that the company did not even understand what they conveyed. “This was the case when you read and do not believe your eyes,” he said. - And it was really expressed in writing. You often hear about such things, but you hardly expect to see in writing. ”
The story began back in 1951, when DuPont began purchasing PFOA (which the company calls C8) from 3M to produce Teflon. 3M invented PFOA four years before. It was used to prevent clumping Teflon. And although PFOA was not recognized by the government as a harmful substance, 3M sent DuPont recommendations for recycling. It had to be burned, or sent to factories engaged in the disposal of chemical waste. At DuPont itself, instructions instructed not to drain it into running water or sewage. But for decades, DuPont dumped hundreds of thousands of kilograms of PFOA in powder through pipes at a factory in Parkersburg into the waters of the Ohio River. The company dumped 7,100 tons of PFOA-containing waste into settling ponds — open reservoirs in Washington Works Squares. From there, substances could seep directly into the ground. PFOA fell into the water
From the documents, Bilot learned that 3M and DuPont had been conducting secret PFOA medical research for more than 40 years. In 1961, DuPont researchers discovered that a chemical can increase liver size in rats and rabbits. A year later, the results of the study were repeated on dogs. The unusual structure of PFOA counteracted its degradation. It also connected with blood plasma and passed through all organs of the body. In the 1970s, DuPont discovered that the concentration of PFOA in the blood of workers at a factory in Washington Works was increased. Then they did not report this to EPA. In 1981, 3M, which continued to supply PFOA to DuPont and other corporations, discovered that taking this substance with food in rats leads to the appearance of defects in newborns. After 3M shared this information, DuPont checked the children from pregnant employees in the teflon unit. Of the seven newborns, two had visual defects. DuPont did not publish this information.
In 1984, DuPont found out that the dust coming from the pipes of the factory was settling over a much larger area than the factory occupied, and that the PFOA was found in local drinking water sources. DuPont decided not to publish this information. In 1991, company scientists calculated a safe concentration of PFOA in drinking water: one part per billion. In the same year, the company found out that there was three times more substance in the local drinking water. Despite disputes within the company, she did not publish this information.
DuPont then stated that during the described period of time, it provided health information and PFOA to the EPA. As evidence, the company sent two letters sent to government agencies in West Virginia in 1982 and 1992, citing internal studies that questioned the relationship between PFOA and health problems.
Bilot discovered that by the 1990s DuPont understood that PFOA causes cancer in the testicles, pancreas, and liver of laboratory animals. One study mentioned the possibility of DNA damage when interacting with PFOA, and the other described the relationship between substance and prostate cancer in workers. As a result, DuPont finally began developing a replacement for PFOA. In 1993, an internal note announced the appearance of a worthy replacement candidate who seemed less toxic and was removed from the body much faster. The company has been arguing about the transition to a new substance. But as a result of the transition refused. The risk was too great - the products produced using the PFOA were key for the business and brought in $ 1 billion annually.
The following critical discovery related to the Tenant case: in the late 1980s, when DuPont was increasingly concerned about the health effects of PFOA, it was decided to find a landfill site to dump the company's toxic waste. And she very successfully recently bought 66 acres from one of the lower-level employees of a factory in Washington Works.
By the 1990s, DuPont had dumped 7,100 tons of PFOA-containing waste into the Dry Run. Scientists understood that everything was leaking from the landfill into the territory of the Tenant, and checked the water in the Dry Run creek. An extremely high concentration of PFOA was found in the water. At that time, the company did not disclose this to the Tenants, and did not disclose the details in the livestock report ten years later - in the very one that accused unscrupulous farmers of livestock death. Bilot found what he needed.
In August 2000, Bilot called DuPont's lawyer, Bernard Reilly, and explained that he knew what was going on. The conversation was short. It was proposed to negotiate with the Tenants, after which the company Bilota gets an unexpected fee, and the whole thing ends right here.
But it didn’t suit Belote. “I was annoyed,” he says.
DuPont was not at all like those corporations that he represented at Taft in cases involving the Superfund. “Everything was completely different. DuPont has been trying to hide her actions for decades. They knew about the dangers of the substance, and still merged it. The facts were terrible. ” He has already seen how water containing PFOA affects livestock. And what did she do with the tens of thousands of people around Parkersburg who drank it daily? What did they have in their brains? Have their internal organs turned green?
The following months, Bilot held, making up the case against DuPont. It took 972 pages, including 136 photographs of evidence. Colleagues called him "Rob's famous letter." “We have confirmed that chemicals and pollutants discharged by the company into the environment at the Dry Run dump and other local factories can represent an inevitable and significant threat to health and the environment,” wrote Bilot. He demanded to start immediate control at the PFOA and provide clean water to people living near the factory. On March 6, 2001, he sent a letter to the directors of all related regulative agencies, including Christy Whitman, the EPA administrator, and US Attorney John Ashcroft.
DuPont responded quickly, demanding that the court ban the dissemination of information that Bilot discovered in the Tenant case. The court denied her that. Bilot sent the whole thing to the EPA.
“DuPont was panicked to find out that this man had attacked their trail,” says Ned McWilliams, a young lawyer who later joined the Bilot team. “For the corporation to require the court to shut up someone’s mouth and prevent their communication with the EPA - this was an extraordinary case. You can imagine how disgusting it looked. They probably knew that they could hardly win. But they were so afraid that they decided to take the risk. ”
Jim tenant
With his "famous letter" Bilot crossed the line. Nominally, he represented the Tenants - the conditions on which they could agree, still had to be discussed - but in reality Bilot spoke on behalf of the public, denouncing deception and sabotage. It became a threat not only to DuPont, but also, according to an internal note - “for the entire fluoroplast industry” - an industry that produces high-quality plastic used in modern devices, such as kitchen utensils, computer cables, implantable devices, gaskets and fasteners, used in cars and airplanes. PFOA was one of the 60,000 synthetic compounds that companies produced and produced without any regulation.
“Rob’s letter lifted the veil over a completely new theater,” says Harry Deitzler, a lawyer from West Virginia who works with Bilot. “Before him, corporations used the common delusion that all hazardous chemicals were subject to regulation.” Under the 1976 Toxic Substance Control Act, the EPA could only screen chemicals when there is evidence of harm. This arrangement, which essentially allowed chemical companies to regulate themselves, led to the fact that only five of the tens of thousands of chemicals on the market in the last 40 years were limited.
It was especially unpleasant to see such accusations of the DuPont company listed on the letterhead of one of the most prestigious corporate defense companies. “You can imagine that in some company that Taft represents - for example, Dow Chemical - they might have thought that they knew that Taft’s lawyer went on the attack on DuPont,” said Larry Winter. “It was an economic threat to the company.” When I asked Thomas Terpe about the reaction of Taft to the “famous letter,” he did not particularly convincingly answer that he did not remember this. “Our partners,” he said, “are proud of our work.”
Bilot was worried that leading corporations with Taft might take it differently. “I'm not a fool, like the people around me,” he says. - You can not ignore the economic reality of business principles, and customer thinking. I expected a reaction like "What the hell are you doing?".
The letter led to the fact that after 4 years, in 2005, DuPont agreed to pay EPA $ 16.5 million in fines. The latter accused the first of concealing information about the toxicity of PFOA and its release into the environment in violation of the act on the control of toxic substances. At that time, it was the largest fine received by the EPA in its history. But, as impressive as it sounds, in fact, the penalty was less than 2% of DuPont’s profit in that year.
Bilot never again represented corporate clients.
The next logical step was the filing of a class action lawsuit against DuPont on behalf of all the people whose water was polluted by PFOA. In almost all respects, Bilot was in the perfect position to file such a claim. He understood the PFOA history as well as any DuPont employee. He had technical and legal experience. The only thing that did not fit the situation was his place of work: no Taft attorney had ever filed a class action.
It is one thing to run a business of several West Virginia farmers out of sentimental motives, or even to write an open letter to the EPA. But a class action that threatens the industry against one of the largest chemical corporations is another. This could set a precedent for filing lawsuits against corporations due to their use of unregulated substances, which could harm Taft. Bernard Reilly, DuPont's own lawyer, expressed this opinion to Terp, as reported by his colleagues at Belota. They said that Reilly called and demanded that Bilot give up the case. Terp confirms that Reilly called him, but did not disclose the details of the conversation. Bilot and Reilly refuse to talk about it, referring to the ongoing trial. But Taft decided to protect her partner.
And soon the main plaintiff appeared. Jzoef Keeger, an evening school teacher from Parkersburg, called Bilota to ask for help. Approximately nine months before this, he received a strange letter from an organization that supplied water to Lübeck. It came on the eve of All Saints' Day together with a bill for water. The letter described that an unregulated chemical substance PFOA was found in the water “in small concentrations” and that it does not pose a threat to health. Kiger identified the most surprising statements, for example, “DuPont reports that it possesses toxicological and epidemiological data confirming its confidence that the company's internal guidelines protect human health.” It was very strange, especially the fact that the company's own data confirmed her confidence in her own directives.
But Keager could have forgotten about this if his wife Darlene had not often thought about PFOA. Her first husband worked as a chemist in the PFOA lab at DuPont. Darlene asked not to mention his name, so as not to involve in local clashes about this case. "Living in this city and working at DuPont, you can get everything you want," says Darlene. The company paid for his education, secured a mortgage, guaranteed a good salary. He was even given free PFOA, which his wife used as a dishwasher soap and car shampoo. Sometimes the husband, after working in the PFOA warehouse, returned home sick - with fever, nausea, diarrhea, vomiting. This was often the case in Washington Works. Darlene says the workers called it "Teflon Flu."
In 1976, when Darlene gave birth to her second child, her husband told her that he was forbidden to bring his working clothes home. He said the company found that PFOA harms women's health and can lead to defects in newborns. Darlene recalled this after 6 years, when at 36 she had her uterus removed, and after another 8 years, when she had another operation. And when this strange letter arrived, Darlene said: “I kept thinking about working clothes, about hysterectomy. I asked myself what does DuPont have to do with our drinking water? ”
Joe called the West Virginia Department of Natural Resources (“They treated me like I was a plague”), the Parkersburg branch of the department of environmental protection (“nothing to worry”), the drinking water department (“I was just cut off”), to the local health department (“I’ve been banally embarrassed”), and even to DuPont (“I was fed the most wordy excuse of all possible”), until finally the scientist from the EPA
’s local office, “Oh my God, Jo,” a scientist, - what the hell is this thing doing in your water? " rules Kiger information about the claim tenant. And court documents Kiger all time come across the name of Robert Bilota of Taft Stettinius & Hollister.
Bilot assumed that the lawsuit would be filed on behalf of one or two regions closest to Washington Works. But water tests showed that six regions and dozens of private wells were contaminated with PFOA, and pollution levels exceeded DuPont's own safety standards. In Little Hawking, the PFOA content in water exceeded the maximum seven times. 70,000 people consumed contaminated water. Some - for decades.
But Bilot faced an unpleasant legal problem. Nobody regulated PFOA. She was not on the state and state lists of pollutants. How will Bilot prove the poisoning of 70,000 people if the government does not consider PFOA a toxin? Legally, PFOA was no different from water. In 2001, it was impossible even to prove that the ingress of PFOA into water was unhealthy. Information about its impact on large populations was fragmented. How could the team prove in its lawsuit the resulting harm, if the effect of the substance on health was virtually unknown?
The best measure for determining safe levels of a substance was the internal rules of DuPont, where one part per billion was mentioned. But when DuPont found out about the upcoming lawsuit, she announced that she would reconsider this figure. As in the Tenant case, DuPont formed a team of its own scientists and specialists from the West Virginia Environmental Protection Department. She announced a new limit: 150 ppb.
Bilot considered the new figure incredible. The toxicologists hired by him determined a safe limit of 0.2 parts per billion. But in West Virginia adopted a new standard. For two years, three lawyers who regularly worked at DuPont were hired to take leadership positions in the department of environmental protection. One was appointed head of the entire agency. “It just stunned me,” says Belote. Probably, for my colleague in West Virginia, who was aware of the work of this system, this was not so unexpected. But I was amazed. ” The very same lawyers who were involved in determining the safe level, became government regulators responsible for enforcing it.
Bilot has developed a new legal strategy. A year before these events, West Virginia became one of the first states to take civil claims for “medical tracking” of the victims. The plaintiff had only to prove that he had been exposed to the toxin. In case of winning, the defendant was obliged to pay for regular medical checks. And if the claimant falls ill later, he may file a claim for damages. Therefore, Bilot in August 2001 filed a class action lawsuit in this state court, although four of the six polluted areas were on the Ohio border.
Meanwhile, the EPA, based on a study conducted by Belote, began its own investigation into the toxicity of PFOA. In 2002, the agency released preliminary results: PFOA can harm the health not only of people who drink the water that contains it, but also for everyone who came into other contact with it - for example, prepared food in teflon pans. The EPA is especially concerned about what PFOA found in US blood banks — moreover, 3M and DuPont have known about these facts since 1976. By 2003, the average PFOA content in the blood of an adult American reached 4-5 parts per billion. In 2000, 3M stopped the release of PFOA. But DuPont, instead of switching to another chemical, built in Fayetteville, North Carolina, a new factory for the independent production of PFOA.
Factory near Parkersburg, the source of pollution and the subject of a class action
It seemed that the strategy of the Pilot works. In September 2004, DuPont decided to make concessions, and install filtration stations in six regions at the request of their authorities, as well as pay a cash reward of $ 70 million. It was supposed to finance a scientific study on finding a “possible connection” between the PFOA and the diseases. If such a link could be found, DuPont would pay for the medical tracking of people from the infected group. Before the results of the study, group members were forbidden to file individual claims for damages.
It would be logical to assume that lawyers will calm down on this. “In any other class action lawsuit you can read about,” says Deitzler, “you get your ten bucks by mail, lawyers get paid and the case is closed. That is exactly what we should have done. ” Three years Bilot worked for nothing, and this poured out to his company a pretty penny. But now Taft has an unexpected income: the team of the Billotte from West Virginia lawyers received $ 21.7 million as part of the proposed lawsuit resolution. “They probably thought to themselves, 'But the guy did it successfully,'” says Deizler. “I would not be surprised if he received an increase in his salary.”
And Taft received a refund, and DuPont provided all the people mentioned in the lawsuit with clean water. Bilot could calmly finish this case.
But he did not finish.
“There were gaps in the data,” says Bilot. Internal research of the company, although their results were gloomy, was limited to research by factory employees. DuPont could have said that even if PFOA was harmful to health, it was only because the factory workers were in contact with its increased concentration in comparison with neighbors who consumed water. This gap allowed the company to claim that it did nothing wrong.
Bilot represented 70,000 people who drank polluted water for decades. What if the money offered by DuPont could be spent on their medical examination? “The members of the class action suit were interested in three things,” says Winter. - First: do I have C8 in my blood? Second: if so, is it harmful? Third: if it is harmful, what will be the consequences? ”Bilot and his colleagues realized that they could answer all the questions if they only checked the customers. And they had such an opportunity. After the claim was satisfied, the lawyers made the paid money go for a full medical examination of its participants. The group members voted in favor, and within a few months, 70,000 people changed their blood to a $ 400 check.
Epidemiologists were inundated with medical data, and DuPont could not do anything about it. On the contrary, one of the points of the agreement was the need for unlimited funding of research by the company. Scientists who are not limited to academic budgets and grants, stumbled upon the epidemiological jackpot: population data and unlimited resources to study them. Scientists conducted 12 studies, including a technically complex simulation that determined the exact dose of PFOA consumed by members of the group that filed the lawsuit.
Promising results were promised. But Bilot could not predict what they would be. If no correlation is found between PFOA and diseases, its clients will not be allowed to file individual claims. Due to the huge amount of data and unlimited budget - the study cost DuPont $ 33 million - the work of the group of scientists took more than expected. Two years have passed without any results. Bilot waited. Passed the third year, then the fifth, sixth. Silence. Bilot waited.
The wait was not calm. In Taft, the pressure on Bilot has increased since he filed a lawsuit in 2001. They gave him a respite from the claims received as a result of the claim, but as the years went by without results, and he continued to spend the firm’s money without attracting new customers, he gradually found himself in an increasingly uncomfortable position.
“This is the case,” says Winter, “no matter how successful it is, it does not compensate, in the company's view, for what it has lost over the years in terms of business.”
Tenants once grazed here.
The more the research committee conducted the research, the more expensive it became. Taft continued to pay consultants for the interpretation of new finds and passed them on to epidemiologists. Bilot advised members of the group that filed the lawsuit, and often traveled to Washington for an EPA meeting, deciding whether to issue rules to restrict the use of PFOA. “We had a lot of expenses,” says Belote. “If scientists had not found a connection with diseases, I would have had to swallow it all.”
Clients called Bilotu to tell them that they had cancer or that a family member died. They wanted to know why everything is so delayed. When can they calm down? Called him and Jim Tenant. Wilbur, who had a cancer, died of a heart attack. Two years later, Wilbur's wife died of cancer. Bilota was tormented by the "thought that we could not make this company take responsibility for its actions in time so that these people could catch this moment."
Taft showed no hesitation in this case, but the tension began to manifest. “It was a lot of stress,” says Belota’s wife, Sarah Barladj. - He was angry because it lasts so long. But he is already stuck in this business. And he is very stubborn. Every day, which was held unchanged, he motivated him even more to finish the job. But we knew that there are things that last forever. ”
Colleagues have noticed that he has changed. "It seemed to me that it was very hard on him," says Winter. - Rob had a young family, growing children, and a firm was pressing him. Rob keeps everything to himself, does not complain. But it was noticeable that he was subjected to incredible stress. "
In 2010, Bilot began a strange attack. His eyesight was blurred, he could not put on his socks, his hands were numb. Doctors did not understand what was happening. Attacks occurred periodically, bringing blurred vision, speech, and problems with managing one side of the body. They came suddenly, and lasted for several days. Doctors asked him about the stress at work. “Nothing out of the ordinary,” answered Belote. “Nothing that wouldn’t exist for many years.”
Doctors as a result stumbled upon an effective treatment. The attacks stopped, their symptoms, with the exception of periodic nervous tics, were under control, but they could not make a diagnosis. "It was very hard," says Belote, "not knowing what the hell is going on."
In December 2011, after seven years of research, scientists began to publish the results. There was a “possible connection” between PFOA and kidney cancer, testicular cancer, thyroid disease, elevated cholesterol, elevated blood pressure during pregnancy [pre-eclampsia], and nonspecific ulcerative colitis.
“There was relief,” says Bilot, diminishing this effect almost to self-deprecation. “We were able to fulfill our promise to these people seven years ago. Especially since all these years, DuPont accused us of lying, trying to intimidate and deceive people. Now we had a scientific answer. ”
By October, already 3535 people filed personal health claims against DuPont. The first person to go to court was Carla Barlet, a kidney cancer survivor. She was awarded $ 1.6 million in October. DuPont planned to file an appeal. The effect of what is happening can spread to a much larger area than the Barlet affair. Her case was one of five “indicative” cases that were considered that year. After that, DuPont could agree on compensation with each of the members of a class action based on the results of the examination of indicative cases, or consider each case individually, as cigarette manufacturers did. At a rate of 4 cases per year, DuPont would continue to sue the PFOA until 2890.
The fact that DuPont continues to deny responsibility is infuriating Belote. “To think that you worked on a deal with which everyone agreed, for seven years, reached the point when certain issues were resolved, but there is still controversy over them,” he says. - I think about the customers who were waiting for this moment, many of whom are sick or even died while waiting. It makes me angry. ”
According to an agreement with the EPA, DuPont ceased production and use of PFOA in 2013. The five remaining PFOA manufacturers in the world also curtail production. DuPont, which is currently discussing a merger with Dow Chemical, last year abandoned its chemical industries. They formed a new corporation, Chemours. The new company replaced PFOA with a similar fluorine-based compound, much faster than biodegradable. This alternative DuPont considered and rejected more than 20 years ago. Like the PFOA, the new lineup is not subject to any restrictions by the EPA. On the question of the safety of a new chemistry, Chemours issued a statement: “A significant amount of data demonstrates that alternative chemicals can be safely used.”
Last May, 200 scientists from various fields of knowledge signed a Madrid statement expressing concern about the production of fluorine-containing substances, or PFAS, including those that replaced the PFOA. These compounds are suspected of belonging to a large class of endocrine disrupting substances. These substances, which include chemicals used in the production of pesticides, plastics and gasoline, affect reproductive function, metabolism, cause cancer, problems with the thyroid and the nervous system. Over the past five years, a new wave of research in the field of endocrinology has found that even very small doses of such chemicals can lead to serious health problems. The Madrid recommendations include “issuing restrictions on the use of PFAS only when absolutely necessary” and “to avoid products where possible. containing and manufactured using PFAS. This includes items with dirt-repellent, waterproof and non-stick properties. ”
Commenting on the Madrid statement, Dan Turner, head of public relations at DuPont, wrote in a letter: “DuPont does not believe that this statement reflects the actual consideration of the available data on alternatives to long-chain perfluorinated substances such as PFOA. DuPont worked for more than ten years under supervision regulators over the development of such alternatives. A lot of data was collected demonstrating that these alternatives are eliminated from the body much faster than PFOA, which increases their safety. We are confident that these alternative the compounds can be used safely - good feedback was obtained about them, and thanks to the obtained data they were able to be registered with many environmental protection agencies from around the world. "
Every year Rob Bilot writes a letter to the West Virginia EPA and DEP, demanding restrictions on the content of PFOA in drinking water. In 2009, the EPA set a “preliminary” limit of 0.4 parts per billion for short-term water use, but this figure was not formalized. This means that drinking water suppliers are not required to inform customers whether they have PFOA in their water. In response to the most recent of the Bilota letters, the EPA stated that it would “announce a permanent restriction on the PFOA at the beginning of 2016”.
Such a level, if announced, can reassure future generations. But if you read this article in 2016, you have PFOA in your blood. It is in the blood of your parents, your children, and your loved one. How did she get there? By air, through food, through the use of non-stick coatings, through the umbilical cord. Or maybe you drank the water that contained it. The US Environmental Protection Working Group found that fluoride compounds are present in 94 regions of 27 states. Residents of some regions have a higher concentration of substances in the water than those for whom Bilot has filed a class action. Parkersburg drinking water, whose region was not involved in the lawsuit and was unable to obtain financing from DuPont for the construction of a filtration system, contains high levels of PFOA. Most of the people living there know nothing about it.
And wherever scientists look for PFOA in water, they find it. It is present in the blood or vital organs of animals such as Atlantic salmon, swordfish, striped mullet, gray seal, great cormorant, Alaskan polar bear, brown pelican, sea turtle, sea eagle, bald eagle, California sea lion, alba albatross from the Sandy Island of Midway Atoll, located in the northern part of the Pacific Ocean (in the western group of the Hawaiian archipelago), midway between North America and Asia.
“We see,” says Joe Kiger, “that the situation has developed from Washington Works to statewide, then to countrywide, and now it is global. We pulled the cork out of a vessel. And it's not just DuPont. Lord, there are 60,000 unregulated chemical compounds in the world. We have no idea what we use. ”
Bilot has not regretted having fought DuPont for the past 16 years, and that PFOA has consumed his career. But he is still furious. “Just think that DuPont could have gone dry out of the water for so long,” says Bilot, with intonation somewhere between surprise and rage, “that they could make money on it, and then negotiate with government agencies to phase out production and then its alternative with untested effects on the human body. We informed the agencies about this in 2001, and those, in fact, were inactive. For 14 years, this thing continued to be used; it continued to remain in drinking water throughout the country. DuPont is quietly switching to a new substance. Meanwhile, they are still struggling with all those who suffered from the previous one. ”
Bilot is currently involved in the Wolfe vs. DuPont case, the second of the lawsuits for injury. The plaintiff, John M. Wolfe from Parkersburg, states that the PFOA in drinking water led to the development of ulcerative ulcerative colitis. The trial will begin in March. Upon completion, 3533 more cases will remain.
Just a few months before becoming a partner in the law firm Taft Stettinius & Hollister, Rob Bilot answered a phone call from a farmer involved in cattle breeding. Farmer Wilbur Tenant [Wilbur Tennant] from Parkersburg in West Virginia told me that his cows are dying. He decided that the cause was the chemical company DuPont, which until recently had been running on the site in Parkesburg, which is 35 times larger than the Pentagon. Tenant tried to enlist the help of local authorities, but DuPont had the whole city in his pocket. His requests with contempt were rejected not only by the lawyers of Parkersburg, but also by his politicians, journalists, doctors and veterinarians. The vexed farmer spoke with a strong accent that betrayed him a resident of the Apalachia region. Bilot tried to understand what the farmer said. He might have hung up, did not mention the farmer of the name of the grandmother of Belote, Alma Holland White.
White lived in Vienna, the northern suburb of Parkersburg, and as a child, Bilot often visited her in the summer. In 1973 she took him to a cattle farm to the neighbors of Tenant, Graham, with whom she was friends. Bilot spent the whole weekend riding horses, milking cows and watching on TV like the famous horse The Secretariat won the Triple Crown race . He was seven years old, and this trip to Graham's farm was one of the happiest memories of his childhood.
When Graham found out in 1998 that Wilbur Tenant was seeking legal assistance, they remembered Bilot, the grandson of White, who grew up and became an environmental lawyer. But they had no idea that Bilot belonged to another kind of lawyers. He did not represent individuals or plaintiffs, but along with 200 other lawyers at Taft, founded in 1885 and historically associated with the family of the 27th President of the United States, William Howard Taft , worked for large corporate clients. He specialized in protecting chemical companies. Several times Bilot even worked with DuPont lawyers. However, as a service to his grandmother, he agreed to meet with the farmer. “It seemed to me that it was right,” he says today. “I felt connected to these people.”
But at the first meeting, this relationship was not traceable. A week after the telephone conversation, Tenant arrived from Parkersburg with his wife at Taft headquarters in a suburb of Cincinnati. They dragged boxes with videotapes, photographs and documents into the glass reception desk of the company on the 18th floor and sat down on fashionable couches under the oil-painted portrait of one of the founders of Taft. Tenant - burly, growing almost 180 cm, in jeans, a plaid flannel shirt and a baseball cap - did not resemble a typical Taft customer. “Let's just say, he appeared in our office, unlike the bank's vice president,” says Thomas Terp, a partner of the firm who was the former supervisor of Bilotte.
Turp was present at the meeting with Bilot. Wilbur Tenant explained that he and four relatives had run a livestock farm since their father left them. Then they had seven cows. Over time, they constantly increased land and livestock, and as a result more than 200 cows grazed on 600 acres of hilly terrain. And the farm would have been even more if his brother Jim and his wife Della had not sold 66 acres of DuPont in the early 80s. The company needed land for a landfill site for its factory, located next to Parkersburg under the name of Washington Works, where Jim worked. Jim and Della did not want to sell the land, but Jim had long been in poor health due to a mysterious disease that the doctors could not diagnose, and they needed money.
DuPont renamed the site to Dry Run Landfill in honor of the Dry Run stream flowing through it. The bed of the same stream followed to the pasture where the Tenants were pasturing their cows. Shortly after the sale, Wilbur reported to Bilotte, the cattle began to behave strangely. Tenants have always treated their livestock as pets. At the sight of one of the Tenants, the cows ran up to him, sniffed and freely allowed themselves to be milked. But now everything has changed, and the cattle began to attack the farmers.
Wilbur put the cassette into the video recorder. The recording made on the portable camera was grainy and interrupted by static. The picture jumped and repeated. The sound accelerated and slowed down. The quality of the recording was like a horror movie. At first, a stream was shown on the video. It flows out of the surrounding forest, with ashen-white trees shedding its foliage around it. Then the camera showed a shallow bed of the stream and stopped at a place resembling a snowdrift on a bend. When driving the camera to this place, it became visible a hill of foam, similar to soap.
“I dragged off two dead deer and two dead cows from this sandbank,” says Tenant in camera recording. - They had blood on their mouth and nose. They are trying to hush up this thing. But nothing will come of them, I will pull them out into the light so that everyone can see. ”
The video shows a large pipe that goes into the stream, from which a green bubbling liquid flows. “This is what they want the cows that belong to a man to drink while they are in his own land,” says Wilbur. “It’s time to throw the heads of all public services from their places.”
At some point on the video appears skinny red cow standing in the hay. Her hair fell in some places, and her back is hunched over - Wilbur thinks that it’s all about kidney problems. For the next static on the video should be an image of a dead black calf with bright blue eyes, lying in the snow. “I have already lost 153 livestock on this farm,” Wilbur says on video later. “Not one Parkersburg veterinarian who I called does not call me back and does not want to contact me.” Since they do not want to do this, I will have to conduct an autopsy myself. I'll start with the head.
Then the opened calf's head appears on the video. Blackened teeth ("It is said that this is due to the high concentration of fluoride in drinking water"), its liver, heart, stomachs, kidneys and gall bladder are shown large. All organs are cut, and Wilbur demonstrates their unnatural colors — dark, greenish — and texture. “I don’t like what they look like. I've never seen anything like this before. ”
Bilot watched videos and photos for several hours. He saw cows with skinny tails, improperly grown horns, enormous size tissue lesions on the sides, red eyes. Cows suffering from persistent diarrhea, with mucous white saliva with consistency of toothpaste, with crooked legs. Tenant always made hitting the camera on the eyes. “This cow suffered for a very long time,” he said, while her eyes were visible on the screen.
“It's terrible,” said Belote. “Something terrible is happening there.”
He immediately decided to take up the case of Tenant. He repeats that it was "right." Bilot might have looked like a corporate lawyer — with a quiet speech, thin, conservatively dressed — but this job was not easy for him. He did not have a typical Taft employee resume. He did not attend college from the " Ivy League"His father was a lieutenant colonel of the Air Force, and Bilot spent most of his childhood moving between different Air Force bases - New York, California, West Germany. He changed eight schools before graduating from Fairborn High, near Ohio Air Force Base. At school, he received an invitation from a small liberal arts college in Sarasota, called the New Florida College, which set off credits instead of grades and allowed pupils to independently draw up a curriculum. Many of his friends there were idealists and progressive thinkers. This did not fit the Reagan policy in the US. He talked one-on-one with professors and began to appreciate critical thinking. "I learned to question everything I read," he says. "Not to believe anything. Ignore someone else's opinion. I liked this philosophy". Bilot studied politics and wrote a thesis on the rise and fall of Dayton. He hoped to get a job in the city administration.
But his father, at a mature age, entered the law and encouraged him to do the same. He surprised his teachers by choosing to visit Ohio Law School, and his course on environmental law was his favorite course. “It seemed that this topic would help influence the real world,” he says. “It was something that would help you change the world.” After graduation, when Taft made him an offer, his mentors and friends were stunned. They did not understand how he could go to work as a corporate lawyer. But Bilot did not think about it from this point of view and did not appreciate the ethics of such an act. “In the family, everyone told me that the most opportunities can be realized in a large firm. I did not know anyone who would ever work in such a company, and no one who could tell me about this work. I was just trying to do my best. I just didn't understand
At the company, he was asked to join the Thomas Terps environmental management team. Ten years earlier, Congress passed the Superfund law. The fund financed urgent clean-ups of places where the release of harmful substances occurred. The superfund was profitable for companies such as Taft, it created a separate area of activity within environmental laws, which required a good understanding of the latest bills for negotiations between municipal services and various private interests. Terp's team at Taft was leading the way.
As an assistant, Bilota was asked to determine which companies were responsible for the release of which toxins and harmful wastes, in what quantities and at which sites. He took applications from factory workers, studied public records, sorted historical data. He became an expert on the platform of the Environmental Protection Agency, the law on drinking water safety, the law on clean air, the law on the control of toxic substances. He perfectly mastered the chemistry of pollutants, despite the fact that he did not have time for chemistry in school. "I studied the work of companies, laws, protection principles," he says. He became a qualified and knowledgeable lawyer.
The road to one of the farms of the Tenants
Bilot was proud of his work. Its main part, in his opinion, was to help customers in compliance with the new regulations. Many of his clients, including the companies Thiokol and Bee Chemical, disposed of toxic waste long before strict regulations were adopted in this area. He worked hard and met several people from Cincinnati. One of his colleagues, seeing that he had no time for socialization, introduced him to his childhood friend Sarah Barladge. She also worked as a lawyer in another firm from Cincinnati, acted as a corporate defender in compensation claims cases in favor of their employees. Bilot accepted the offer to have dinner together. Sarah says she doesn’t remember him saying anything. “My first impression was about him as unlike the other guys,” she says. - I myself talkative, he is silent a lot.
They got married in 1996. The first of three sons was born two years later. Bilot felt confident enough at work so that Sarah could quit and devote all her time to taking care of children. Terp remembers him as an "outstanding lawyer: very intelligent, energetic, tenacious, and extremely thorough." He was the ideal lawyer Taft. And then Wilbur Tenant appeared.
The Tenants case put the Taft in an unusual position. The firm represented the interests of chemical corporations, and not suing them. The prospect of fighting DuPont "made us think about it," admitted Turp. “But deciding on this was not so difficult. I believe that our work on the side of individuals improves us as lawyers. ”
Bilot turned for help to a lawyer from West Virginia named Larry Winter. For many years, Winter was a partner at Spilman, Thomas & Battle - one of those who represented DuPont in West Virginia - and then he quit and started his own practice in the field of injury. He was amazed that Bilot was going to sue DuPont, working for Taft.
"The fact that he took the case of Tenant," said Winter, "considering what they were doing at Taft, seemed something unimaginable."
Bilot himself reluctantly discusses the motives that prompted him to get down to business. He came closest to this issue when he was asked if he had any concerns about how his career developed, given that his initial impulse was “to change the world.” “There was a reason why I became interested in the Tenants case,” he replied after a while. “It was a great opportunity to use my experience to help people in real need.”
Bilot sued DuPont in the summer of 1999 in the southern region of West Virginia. In response, the company's own lawyer, Bernard Reilly, said that DuPont and the United States Environmental Protection Agency (EPA) would order a study of the area conducted by three veterinarians selected by the company and three doctors appointed by the EPA. found DuPont guilty of cow health problems. They blamed poor cow care, poor nutrition, poor veterinarians, and insect control. In other words, the Tenants were accused of not being able to care for the cattle. They were to blame for the death of livestock.
Tenants were not in vain, and because of their quarrel with the town-forming enterprise, they started having problems. Longtime friends refused to communicate with them, and left the restaurants, which included the Tenants. "I am forbidden to talk to you," they said, being called to a conversation. Four times Tenant had to change the church.
Wilbur almost daily called the office, but Bilot could not please him much. For the Tenants, he did the same thing that he would do for any corporate client - he studied permits, land transactions, requested DuPont documentation on the sites - but could not find evidence explaining what was happening with the livestock. “We began to despair,” says Belote. “I could not blame the Tenants for being angry.”
On the threshold of the trial, Bilot stumbled upon a letter sent by DuPont to the EPA, where a substance with the mysterious name “PFOA” was mentioned in connection with the dump. Having worked with chemical companies for so many years, Bilot has never met such an abbreviation. She was not in any list of substances subject to regulation, and even in the internal library of Taft. The chemistry expert, in response to his request, recalled that he had seen an article about a compound with a similar name somewhere, PFOS, a soap-like substance used by 3M conglomerate for making water-repellent Scotchgard compounds.
Bilot scanned his files for PFOA mentions, and found out that it was short for perfluorooctanoic acid. But there was no data for it. He requested relevant documents from DuPont, but she refused to issue them. In the fall of 2000, Bilot requested an order from the court to receive these documents. Warrant issued, despite the protests of the company. And dozens of boxes with hundreds of unorganized documents began to arrive at Taft. There was a private correspondence, medical reports, confidential research conducted by the company's scientists. A total of 110,000 pages were sent, some of which were already 50 years old. The next few months, Bilot spent on the floor of the office, rummaging through documents and laying them out chronologically. He stopped responding to calls, and his secretary answered that although he was in the office, he could not reach the phone on time because he was surrounded by boxes.
“I began to see a story,” says Bilot. - Perhaps I am the first person to study these documents. It became clear what was happening: they had been aware for a very long time that this substance was very harmful. ”
Bilot put it very gently. As his colleague Edison Hill said, “to say that Rob Bilot then put it mildly means to speak too softly.” Before the eyes of the Bilot, who was sitting on the floor, cross-legged, a story began to emerge that was amazing in scope, uniqueness and shamelessness. “I was shocked,” he says. And this, too, was an understatement. Bilot could not believe the extent of incriminating materials from DuPont. It seemed that the company did not even understand what they conveyed. “This was the case when you read and do not believe your eyes,” he said. - And it was really expressed in writing. You often hear about such things, but you hardly expect to see in writing. ”
The story began back in 1951, when DuPont began purchasing PFOA (which the company calls C8) from 3M to produce Teflon. 3M invented PFOA four years before. It was used to prevent clumping Teflon. And although PFOA was not recognized by the government as a harmful substance, 3M sent DuPont recommendations for recycling. It had to be burned, or sent to factories engaged in the disposal of chemical waste. At DuPont itself, instructions instructed not to drain it into running water or sewage. But for decades, DuPont dumped hundreds of thousands of kilograms of PFOA in powder through pipes at a factory in Parkersburg into the waters of the Ohio River. The company dumped 7,100 tons of PFOA-containing waste into settling ponds — open reservoirs in Washington Works Squares. From there, substances could seep directly into the ground. PFOA fell into the water
From the documents, Bilot learned that 3M and DuPont had been conducting secret PFOA medical research for more than 40 years. In 1961, DuPont researchers discovered that a chemical can increase liver size in rats and rabbits. A year later, the results of the study were repeated on dogs. The unusual structure of PFOA counteracted its degradation. It also connected with blood plasma and passed through all organs of the body. In the 1970s, DuPont discovered that the concentration of PFOA in the blood of workers at a factory in Washington Works was increased. Then they did not report this to EPA. In 1981, 3M, which continued to supply PFOA to DuPont and other corporations, discovered that taking this substance with food in rats leads to the appearance of defects in newborns. After 3M shared this information, DuPont checked the children from pregnant employees in the teflon unit. Of the seven newborns, two had visual defects. DuPont did not publish this information.
In 1984, DuPont found out that the dust coming from the pipes of the factory was settling over a much larger area than the factory occupied, and that the PFOA was found in local drinking water sources. DuPont decided not to publish this information. In 1991, company scientists calculated a safe concentration of PFOA in drinking water: one part per billion. In the same year, the company found out that there was three times more substance in the local drinking water. Despite disputes within the company, she did not publish this information.
DuPont then stated that during the described period of time, it provided health information and PFOA to the EPA. As evidence, the company sent two letters sent to government agencies in West Virginia in 1982 and 1992, citing internal studies that questioned the relationship between PFOA and health problems.
Bilot discovered that by the 1990s DuPont understood that PFOA causes cancer in the testicles, pancreas, and liver of laboratory animals. One study mentioned the possibility of DNA damage when interacting with PFOA, and the other described the relationship between substance and prostate cancer in workers. As a result, DuPont finally began developing a replacement for PFOA. In 1993, an internal note announced the appearance of a worthy replacement candidate who seemed less toxic and was removed from the body much faster. The company has been arguing about the transition to a new substance. But as a result of the transition refused. The risk was too great - the products produced using the PFOA were key for the business and brought in $ 1 billion annually.
The following critical discovery related to the Tenant case: in the late 1980s, when DuPont was increasingly concerned about the health effects of PFOA, it was decided to find a landfill site to dump the company's toxic waste. And she very successfully recently bought 66 acres from one of the lower-level employees of a factory in Washington Works.
By the 1990s, DuPont had dumped 7,100 tons of PFOA-containing waste into the Dry Run. Scientists understood that everything was leaking from the landfill into the territory of the Tenant, and checked the water in the Dry Run creek. An extremely high concentration of PFOA was found in the water. At that time, the company did not disclose this to the Tenants, and did not disclose the details in the livestock report ten years later - in the very one that accused unscrupulous farmers of livestock death. Bilot found what he needed.
In August 2000, Bilot called DuPont's lawyer, Bernard Reilly, and explained that he knew what was going on. The conversation was short. It was proposed to negotiate with the Tenants, after which the company Bilota gets an unexpected fee, and the whole thing ends right here.
But it didn’t suit Belote. “I was annoyed,” he says.
DuPont was not at all like those corporations that he represented at Taft in cases involving the Superfund. “Everything was completely different. DuPont has been trying to hide her actions for decades. They knew about the dangers of the substance, and still merged it. The facts were terrible. ” He has already seen how water containing PFOA affects livestock. And what did she do with the tens of thousands of people around Parkersburg who drank it daily? What did they have in their brains? Have their internal organs turned green?
The following months, Bilot held, making up the case against DuPont. It took 972 pages, including 136 photographs of evidence. Colleagues called him "Rob's famous letter." “We have confirmed that chemicals and pollutants discharged by the company into the environment at the Dry Run dump and other local factories can represent an inevitable and significant threat to health and the environment,” wrote Bilot. He demanded to start immediate control at the PFOA and provide clean water to people living near the factory. On March 6, 2001, he sent a letter to the directors of all related regulative agencies, including Christy Whitman, the EPA administrator, and US Attorney John Ashcroft.
DuPont responded quickly, demanding that the court ban the dissemination of information that Bilot discovered in the Tenant case. The court denied her that. Bilot sent the whole thing to the EPA.
“DuPont was panicked to find out that this man had attacked their trail,” says Ned McWilliams, a young lawyer who later joined the Bilot team. “For the corporation to require the court to shut up someone’s mouth and prevent their communication with the EPA - this was an extraordinary case. You can imagine how disgusting it looked. They probably knew that they could hardly win. But they were so afraid that they decided to take the risk. ”
Jim tenant
With his "famous letter" Bilot crossed the line. Nominally, he represented the Tenants - the conditions on which they could agree, still had to be discussed - but in reality Bilot spoke on behalf of the public, denouncing deception and sabotage. It became a threat not only to DuPont, but also, according to an internal note - “for the entire fluoroplast industry” - an industry that produces high-quality plastic used in modern devices, such as kitchen utensils, computer cables, implantable devices, gaskets and fasteners, used in cars and airplanes. PFOA was one of the 60,000 synthetic compounds that companies produced and produced without any regulation.
“Rob’s letter lifted the veil over a completely new theater,” says Harry Deitzler, a lawyer from West Virginia who works with Bilot. “Before him, corporations used the common delusion that all hazardous chemicals were subject to regulation.” Under the 1976 Toxic Substance Control Act, the EPA could only screen chemicals when there is evidence of harm. This arrangement, which essentially allowed chemical companies to regulate themselves, led to the fact that only five of the tens of thousands of chemicals on the market in the last 40 years were limited.
It was especially unpleasant to see such accusations of the DuPont company listed on the letterhead of one of the most prestigious corporate defense companies. “You can imagine that in some company that Taft represents - for example, Dow Chemical - they might have thought that they knew that Taft’s lawyer went on the attack on DuPont,” said Larry Winter. “It was an economic threat to the company.” When I asked Thomas Terpe about the reaction of Taft to the “famous letter,” he did not particularly convincingly answer that he did not remember this. “Our partners,” he said, “are proud of our work.”
Bilot was worried that leading corporations with Taft might take it differently. “I'm not a fool, like the people around me,” he says. - You can not ignore the economic reality of business principles, and customer thinking. I expected a reaction like "What the hell are you doing?".
The letter led to the fact that after 4 years, in 2005, DuPont agreed to pay EPA $ 16.5 million in fines. The latter accused the first of concealing information about the toxicity of PFOA and its release into the environment in violation of the act on the control of toxic substances. At that time, it was the largest fine received by the EPA in its history. But, as impressive as it sounds, in fact, the penalty was less than 2% of DuPont’s profit in that year.
Bilot never again represented corporate clients.
The next logical step was the filing of a class action lawsuit against DuPont on behalf of all the people whose water was polluted by PFOA. In almost all respects, Bilot was in the perfect position to file such a claim. He understood the PFOA history as well as any DuPont employee. He had technical and legal experience. The only thing that did not fit the situation was his place of work: no Taft attorney had ever filed a class action.
It is one thing to run a business of several West Virginia farmers out of sentimental motives, or even to write an open letter to the EPA. But a class action that threatens the industry against one of the largest chemical corporations is another. This could set a precedent for filing lawsuits against corporations due to their use of unregulated substances, which could harm Taft. Bernard Reilly, DuPont's own lawyer, expressed this opinion to Terp, as reported by his colleagues at Belota. They said that Reilly called and demanded that Bilot give up the case. Terp confirms that Reilly called him, but did not disclose the details of the conversation. Bilot and Reilly refuse to talk about it, referring to the ongoing trial. But Taft decided to protect her partner.
And soon the main plaintiff appeared. Jzoef Keeger, an evening school teacher from Parkersburg, called Bilota to ask for help. Approximately nine months before this, he received a strange letter from an organization that supplied water to Lübeck. It came on the eve of All Saints' Day together with a bill for water. The letter described that an unregulated chemical substance PFOA was found in the water “in small concentrations” and that it does not pose a threat to health. Kiger identified the most surprising statements, for example, “DuPont reports that it possesses toxicological and epidemiological data confirming its confidence that the company's internal guidelines protect human health.” It was very strange, especially the fact that the company's own data confirmed her confidence in her own directives.
But Keager could have forgotten about this if his wife Darlene had not often thought about PFOA. Her first husband worked as a chemist in the PFOA lab at DuPont. Darlene asked not to mention his name, so as not to involve in local clashes about this case. "Living in this city and working at DuPont, you can get everything you want," says Darlene. The company paid for his education, secured a mortgage, guaranteed a good salary. He was even given free PFOA, which his wife used as a dishwasher soap and car shampoo. Sometimes the husband, after working in the PFOA warehouse, returned home sick - with fever, nausea, diarrhea, vomiting. This was often the case in Washington Works. Darlene says the workers called it "Teflon Flu."
In 1976, when Darlene gave birth to her second child, her husband told her that he was forbidden to bring his working clothes home. He said the company found that PFOA harms women's health and can lead to defects in newborns. Darlene recalled this after 6 years, when at 36 she had her uterus removed, and after another 8 years, when she had another operation. And when this strange letter arrived, Darlene said: “I kept thinking about working clothes, about hysterectomy. I asked myself what does DuPont have to do with our drinking water? ”
Joe called the West Virginia Department of Natural Resources (“They treated me like I was a plague”), the Parkersburg branch of the department of environmental protection (“nothing to worry”), the drinking water department (“I was just cut off”), to the local health department (“I’ve been banally embarrassed”), and even to DuPont (“I was fed the most wordy excuse of all possible”), until finally the scientist from the EPA
’s local office, “Oh my God, Jo,” a scientist, - what the hell is this thing doing in your water? " rules Kiger information about the claim tenant. And court documents Kiger all time come across the name of Robert Bilota of Taft Stettinius & Hollister.
Bilot assumed that the lawsuit would be filed on behalf of one or two regions closest to Washington Works. But water tests showed that six regions and dozens of private wells were contaminated with PFOA, and pollution levels exceeded DuPont's own safety standards. In Little Hawking, the PFOA content in water exceeded the maximum seven times. 70,000 people consumed contaminated water. Some - for decades.
But Bilot faced an unpleasant legal problem. Nobody regulated PFOA. She was not on the state and state lists of pollutants. How will Bilot prove the poisoning of 70,000 people if the government does not consider PFOA a toxin? Legally, PFOA was no different from water. In 2001, it was impossible even to prove that the ingress of PFOA into water was unhealthy. Information about its impact on large populations was fragmented. How could the team prove in its lawsuit the resulting harm, if the effect of the substance on health was virtually unknown?
The best measure for determining safe levels of a substance was the internal rules of DuPont, where one part per billion was mentioned. But when DuPont found out about the upcoming lawsuit, she announced that she would reconsider this figure. As in the Tenant case, DuPont formed a team of its own scientists and specialists from the West Virginia Environmental Protection Department. She announced a new limit: 150 ppb.
Bilot considered the new figure incredible. The toxicologists hired by him determined a safe limit of 0.2 parts per billion. But in West Virginia adopted a new standard. For two years, three lawyers who regularly worked at DuPont were hired to take leadership positions in the department of environmental protection. One was appointed head of the entire agency. “It just stunned me,” says Belote. Probably, for my colleague in West Virginia, who was aware of the work of this system, this was not so unexpected. But I was amazed. ” The very same lawyers who were involved in determining the safe level, became government regulators responsible for enforcing it.
Bilot has developed a new legal strategy. A year before these events, West Virginia became one of the first states to take civil claims for “medical tracking” of the victims. The plaintiff had only to prove that he had been exposed to the toxin. In case of winning, the defendant was obliged to pay for regular medical checks. And if the claimant falls ill later, he may file a claim for damages. Therefore, Bilot in August 2001 filed a class action lawsuit in this state court, although four of the six polluted areas were on the Ohio border.
Meanwhile, the EPA, based on a study conducted by Belote, began its own investigation into the toxicity of PFOA. In 2002, the agency released preliminary results: PFOA can harm the health not only of people who drink the water that contains it, but also for everyone who came into other contact with it - for example, prepared food in teflon pans. The EPA is especially concerned about what PFOA found in US blood banks — moreover, 3M and DuPont have known about these facts since 1976. By 2003, the average PFOA content in the blood of an adult American reached 4-5 parts per billion. In 2000, 3M stopped the release of PFOA. But DuPont, instead of switching to another chemical, built in Fayetteville, North Carolina, a new factory for the independent production of PFOA.
Factory near Parkersburg, the source of pollution and the subject of a class action
It seemed that the strategy of the Pilot works. In September 2004, DuPont decided to make concessions, and install filtration stations in six regions at the request of their authorities, as well as pay a cash reward of $ 70 million. It was supposed to finance a scientific study on finding a “possible connection” between the PFOA and the diseases. If such a link could be found, DuPont would pay for the medical tracking of people from the infected group. Before the results of the study, group members were forbidden to file individual claims for damages.
It would be logical to assume that lawyers will calm down on this. “In any other class action lawsuit you can read about,” says Deitzler, “you get your ten bucks by mail, lawyers get paid and the case is closed. That is exactly what we should have done. ” Three years Bilot worked for nothing, and this poured out to his company a pretty penny. But now Taft has an unexpected income: the team of the Billotte from West Virginia lawyers received $ 21.7 million as part of the proposed lawsuit resolution. “They probably thought to themselves, 'But the guy did it successfully,'” says Deizler. “I would not be surprised if he received an increase in his salary.”
And Taft received a refund, and DuPont provided all the people mentioned in the lawsuit with clean water. Bilot could calmly finish this case.
But he did not finish.
“There were gaps in the data,” says Bilot. Internal research of the company, although their results were gloomy, was limited to research by factory employees. DuPont could have said that even if PFOA was harmful to health, it was only because the factory workers were in contact with its increased concentration in comparison with neighbors who consumed water. This gap allowed the company to claim that it did nothing wrong.
Bilot represented 70,000 people who drank polluted water for decades. What if the money offered by DuPont could be spent on their medical examination? “The members of the class action suit were interested in three things,” says Winter. - First: do I have C8 in my blood? Second: if so, is it harmful? Third: if it is harmful, what will be the consequences? ”Bilot and his colleagues realized that they could answer all the questions if they only checked the customers. And they had such an opportunity. After the claim was satisfied, the lawyers made the paid money go for a full medical examination of its participants. The group members voted in favor, and within a few months, 70,000 people changed their blood to a $ 400 check.
Epidemiologists were inundated with medical data, and DuPont could not do anything about it. On the contrary, one of the points of the agreement was the need for unlimited funding of research by the company. Scientists who are not limited to academic budgets and grants, stumbled upon the epidemiological jackpot: population data and unlimited resources to study them. Scientists conducted 12 studies, including a technically complex simulation that determined the exact dose of PFOA consumed by members of the group that filed the lawsuit.
Promising results were promised. But Bilot could not predict what they would be. If no correlation is found between PFOA and diseases, its clients will not be allowed to file individual claims. Due to the huge amount of data and unlimited budget - the study cost DuPont $ 33 million - the work of the group of scientists took more than expected. Two years have passed without any results. Bilot waited. Passed the third year, then the fifth, sixth. Silence. Bilot waited.
The wait was not calm. In Taft, the pressure on Bilot has increased since he filed a lawsuit in 2001. They gave him a respite from the claims received as a result of the claim, but as the years went by without results, and he continued to spend the firm’s money without attracting new customers, he gradually found himself in an increasingly uncomfortable position.
“This is the case,” says Winter, “no matter how successful it is, it does not compensate, in the company's view, for what it has lost over the years in terms of business.”
Tenants once grazed here.
The more the research committee conducted the research, the more expensive it became. Taft continued to pay consultants for the interpretation of new finds and passed them on to epidemiologists. Bilot advised members of the group that filed the lawsuit, and often traveled to Washington for an EPA meeting, deciding whether to issue rules to restrict the use of PFOA. “We had a lot of expenses,” says Belote. “If scientists had not found a connection with diseases, I would have had to swallow it all.”
Clients called Bilotu to tell them that they had cancer or that a family member died. They wanted to know why everything is so delayed. When can they calm down? Called him and Jim Tenant. Wilbur, who had a cancer, died of a heart attack. Two years later, Wilbur's wife died of cancer. Bilota was tormented by the "thought that we could not make this company take responsibility for its actions in time so that these people could catch this moment."
Taft showed no hesitation in this case, but the tension began to manifest. “It was a lot of stress,” says Belota’s wife, Sarah Barladj. - He was angry because it lasts so long. But he is already stuck in this business. And he is very stubborn. Every day, which was held unchanged, he motivated him even more to finish the job. But we knew that there are things that last forever. ”
Colleagues have noticed that he has changed. "It seemed to me that it was very hard on him," says Winter. - Rob had a young family, growing children, and a firm was pressing him. Rob keeps everything to himself, does not complain. But it was noticeable that he was subjected to incredible stress. "
In 2010, Bilot began a strange attack. His eyesight was blurred, he could not put on his socks, his hands were numb. Doctors did not understand what was happening. Attacks occurred periodically, bringing blurred vision, speech, and problems with managing one side of the body. They came suddenly, and lasted for several days. Doctors asked him about the stress at work. “Nothing out of the ordinary,” answered Belote. “Nothing that wouldn’t exist for many years.”
Doctors as a result stumbled upon an effective treatment. The attacks stopped, their symptoms, with the exception of periodic nervous tics, were under control, but they could not make a diagnosis. "It was very hard," says Belote, "not knowing what the hell is going on."
In December 2011, after seven years of research, scientists began to publish the results. There was a “possible connection” between PFOA and kidney cancer, testicular cancer, thyroid disease, elevated cholesterol, elevated blood pressure during pregnancy [pre-eclampsia], and nonspecific ulcerative colitis.
“There was relief,” says Bilot, diminishing this effect almost to self-deprecation. “We were able to fulfill our promise to these people seven years ago. Especially since all these years, DuPont accused us of lying, trying to intimidate and deceive people. Now we had a scientific answer. ”
By October, already 3535 people filed personal health claims against DuPont. The first person to go to court was Carla Barlet, a kidney cancer survivor. She was awarded $ 1.6 million in October. DuPont planned to file an appeal. The effect of what is happening can spread to a much larger area than the Barlet affair. Her case was one of five “indicative” cases that were considered that year. After that, DuPont could agree on compensation with each of the members of a class action based on the results of the examination of indicative cases, or consider each case individually, as cigarette manufacturers did. At a rate of 4 cases per year, DuPont would continue to sue the PFOA until 2890.
The fact that DuPont continues to deny responsibility is infuriating Belote. “To think that you worked on a deal with which everyone agreed, for seven years, reached the point when certain issues were resolved, but there is still controversy over them,” he says. - I think about the customers who were waiting for this moment, many of whom are sick or even died while waiting. It makes me angry. ”
According to an agreement with the EPA, DuPont ceased production and use of PFOA in 2013. The five remaining PFOA manufacturers in the world also curtail production. DuPont, which is currently discussing a merger with Dow Chemical, last year abandoned its chemical industries. They formed a new corporation, Chemours. The new company replaced PFOA with a similar fluorine-based compound, much faster than biodegradable. This alternative DuPont considered and rejected more than 20 years ago. Like the PFOA, the new lineup is not subject to any restrictions by the EPA. On the question of the safety of a new chemistry, Chemours issued a statement: “A significant amount of data demonstrates that alternative chemicals can be safely used.”
Last May, 200 scientists from various fields of knowledge signed a Madrid statement expressing concern about the production of fluorine-containing substances, or PFAS, including those that replaced the PFOA. These compounds are suspected of belonging to a large class of endocrine disrupting substances. These substances, which include chemicals used in the production of pesticides, plastics and gasoline, affect reproductive function, metabolism, cause cancer, problems with the thyroid and the nervous system. Over the past five years, a new wave of research in the field of endocrinology has found that even very small doses of such chemicals can lead to serious health problems. The Madrid recommendations include “issuing restrictions on the use of PFAS only when absolutely necessary” and “to avoid products where possible. containing and manufactured using PFAS. This includes items with dirt-repellent, waterproof and non-stick properties. ”
Commenting on the Madrid statement, Dan Turner, head of public relations at DuPont, wrote in a letter: “DuPont does not believe that this statement reflects the actual consideration of the available data on alternatives to long-chain perfluorinated substances such as PFOA. DuPont worked for more than ten years under supervision regulators over the development of such alternatives. A lot of data was collected demonstrating that these alternatives are eliminated from the body much faster than PFOA, which increases their safety. We are confident that these alternative the compounds can be used safely - good feedback was obtained about them, and thanks to the obtained data they were able to be registered with many environmental protection agencies from around the world. "
Every year Rob Bilot writes a letter to the West Virginia EPA and DEP, demanding restrictions on the content of PFOA in drinking water. In 2009, the EPA set a “preliminary” limit of 0.4 parts per billion for short-term water use, but this figure was not formalized. This means that drinking water suppliers are not required to inform customers whether they have PFOA in their water. In response to the most recent of the Bilota letters, the EPA stated that it would “announce a permanent restriction on the PFOA at the beginning of 2016”.
Such a level, if announced, can reassure future generations. But if you read this article in 2016, you have PFOA in your blood. It is in the blood of your parents, your children, and your loved one. How did she get there? By air, through food, through the use of non-stick coatings, through the umbilical cord. Or maybe you drank the water that contained it. The US Environmental Protection Working Group found that fluoride compounds are present in 94 regions of 27 states. Residents of some regions have a higher concentration of substances in the water than those for whom Bilot has filed a class action. Parkersburg drinking water, whose region was not involved in the lawsuit and was unable to obtain financing from DuPont for the construction of a filtration system, contains high levels of PFOA. Most of the people living there know nothing about it.
And wherever scientists look for PFOA in water, they find it. It is present in the blood or vital organs of animals such as Atlantic salmon, swordfish, striped mullet, gray seal, great cormorant, Alaskan polar bear, brown pelican, sea turtle, sea eagle, bald eagle, California sea lion, alba albatross from the Sandy Island of Midway Atoll, located in the northern part of the Pacific Ocean (in the western group of the Hawaiian archipelago), midway between North America and Asia.
“We see,” says Joe Kiger, “that the situation has developed from Washington Works to statewide, then to countrywide, and now it is global. We pulled the cork out of a vessel. And it's not just DuPont. Lord, there are 60,000 unregulated chemical compounds in the world. We have no idea what we use. ”
Bilot has not regretted having fought DuPont for the past 16 years, and that PFOA has consumed his career. But he is still furious. “Just think that DuPont could have gone dry out of the water for so long,” says Bilot, with intonation somewhere between surprise and rage, “that they could make money on it, and then negotiate with government agencies to phase out production and then its alternative with untested effects on the human body. We informed the agencies about this in 2001, and those, in fact, were inactive. For 14 years, this thing continued to be used; it continued to remain in drinking water throughout the country. DuPont is quietly switching to a new substance. Meanwhile, they are still struggling with all those who suffered from the previous one. ”
Bilot is currently involved in the Wolfe vs. DuPont case, the second of the lawsuits for injury. The plaintiff, John M. Wolfe from Parkersburg, states that the PFOA in drinking water led to the development of ulcerative ulcerative colitis. The trial will begin in March. Upon completion, 3533 more cases will remain.