Inside EPA 

EPA Urged To Require Additional PFOA 

Data From DuPont To Aid Rules 

Posted: April 19, 2013 

A lawyer representing thousands of citizens potentially exposed to perfluorooctanoic acid (PFOA) in their 

drinking water due to releases from a DuPont-owned West Virginia plant is pressing EPA to force the 

company to supply additional monitoring data on the contamination that would help EPA fill data gaps 

and issue PFOA drinking water regulations. 

Attorney Robert Bilott with the law firm Taft Stettinius & Hollister contends DuPont long ago promised 

under a voluntary agreement with EPA to supply data regarding its Washington Works Plant in Wood 

County, WV, which used PFOA, a non-stick agent that has been linked to a variety of adverse health 

effects, in manufacturing. In separate legal proceedings, Taft represented about 80,000 people in a classaction suit, settled with DuPont in 2005, over exposures to drinking water supplies contaminated by the 

plant’s operations. 

Bilott April 8 wrote to EPA Chemical Control Division Director Maria Doa and other EPA staff on behalf of 

thousands of individuals with contaminated drinking water at the site, charging that DuPont has failed to 

conduct all the necessary monitoring the company agreed to under a memorandum of understanding 

(MOU) with EPA and urging the agency to require DuPont to provide the additional data sought. 

DuPont has had a decade-long “free pass” from EPA regulatory and enforcement actions due to 

commitments it made to the agency to work voluntarily to provide the needed monitoring data related to 

the Washington Works site, Bilott argues. A final monitoring report, known as the Phase III report, that 

DuPont submitted to EPA late last year “makes clear, however, that neither the Agency nor the interested 

parties will ever receive the benefit that was promised in return more than ten years ago: the monitoring 

data,” he writes. The company refuses to provide the additional data, he says. 

“For more than ten years, Dupont has been able to cite to this very same alleged lack of monitoring data 

as a reason why US EPA should not proceed with finalizing its decade-old PFOA risk assessments or 

release new drinking water regulations,” Bilott says. DuPont previously promised to fill these data gaps, 

he says. 

Bilott contends it is now clear Dupont’s promise to voluntarily produce monitoring data was hollow, 

therefore EPA “should take those steps necessary to immediately force DuPont to provide whatever 

additional monitoring data is needed to address any remaining PFOA data gaps.” 

In 2001, the law firm first urged EPA to obtain monitoring data from DuPont to address on-going threats 

to human health and the environment from the Washington Works Plant and area landfills where PFOA 

wastes were sent, according to the letter. The firm requested EPA order an assessment of these releases 

under the Toxic Substances Control Act (TSCA) and other laws. EPA soon after developed a draft hazard 

and risk assessment indicating that due to toxicity and carcinogenicity data and blood monitoring data, 

“PFOA might require formal regulatory action by US EPA under TSCA,” the letter says. 

Voluntary Data Collection
But DuPont and other companies instead offered to voluntarily provide data they believed EPA should 

consider before finalizing risk or hazard assessments or taking formal action under TSCA, the letter says. 

EPA nonetheless announced that additional data may be needed beyond that volunteered, and said it 

would develop enforceable consent agreements (ECAs) under TSCA to put in place an industry-sponsored 

testing program for PFOA. The agreements would focus on pointing to environmental fate and transport 

data and other information key to understanding the sources of PFOA and pathways to human exposure, 

the letter says, citing EPA. 

Instead, EPA agreed to back off on moving forward with the ECAs and responded to DuPont’s alleged 

push to use an unenforceable MOU with the company to collect additional data, according to the letter. 

By the end of the MOU negotiations, it was clear EPA expected Phase III work under the MOU “to include 

collection of whatever additional air, soil, water, sediment, biota, and off-site monitoring data ultimately 

were considered to be appropriate by the peer review panel that was created under the MOU,” Bilott 

says. 

Previous Phase I and II monitoring data were found to be inadequate to address EPA’s needs, according 

to a 2009 final peer consultation report conducted as part of the peer review process created under the 

MOU, Bilott says. This report identified a list of inadequacies to be addressed by the company in the 

Phase III work, including “inadequate evaluation of air emissions from landfills; failure to take actual air 

samples and other media samples more than 2 miles from the Plant site; failure to consider air emissions 

from the Little Hocking Service center; failure to sample surface water other than the Ohio River . . ., and 

farm ponds, or sediments in such locations,” and failure to sample farm and home-grown produce, fish 

and game, he says. 

EPA told DuPont it agreed with the peer review panel’s comments, but both EPA and DuPont disagreed 

on the necessary Phase III work, the letter says. 

Because DuPont is taking the position that the final Phase III report completes all of the MOU’s 

requirements, “it is clear that DuPont is simply refusing to collect any of the other recommended and/or 

requested monitoring data, leaving the exact same data gaps with respect to those media that existed 

when this whole ‘voluntary’ process began more than a decade ago,” the letter says. 

The attorney argues it is clear DuPont will not provide the data “until forced to do so through appropriate 

legal action.” 

DuPont’s “empty promises” have allowed it “to very effectively delay and thwart the collection and 

analysis of important PFOA monitoring data for more than a decade -- long enough that much of the data 

now no longer exists (e.g., most of the exposed cattle and impacted wildlife are now long-dead) and the 

ability to detect the true levels of exposure have greatly diminished (as the PFOA blood/tissue levels drop 

over time). US EPA should not allow DuPont to effectively control and manipulate the overall PFOA 

monitoring data set in this manner or benefit from perpetuation of the monitoring data gaps by citing to 

such gaps as a basis for not finalizing the Agency’s now decade-old PFOA risk assessment or human 

drinking water standards,” he says. 

Bilott says this is particularly the case now that the independent panel of scientists -- formed as a result 

of the class-action suit settlement with DuPont -- has linked PFOA exposures to several adverse health 

effects, including testicular and kidney cancer, ulcerative colitis, thyroid disease, hypercholesterolemia 

and pregnancy-induced hypertension in residents exposed to PFOA in drinking water. 

Additional Monitoring Requested
The attorney, on behalf of the clients exposed to drinking water contamination, repeats a request made 

in 2001 to EPA, that it act now through formal enforcement and/or legal action under TSCA to require the 

additional PFOA monitoring data from DuPont. 

It will be several years before any drinking water standards may be developed. EPA has a provisional 

drinking water health advisory for PFOA of 0.4 ppb, but that is only for short-term exposures and does 

not address long-term exposures. The agency in a letter last September told Taft attorneys that it was 

updating its health risk assessment for PFOA, noting that a reference dose or cancer slope factor is 

needed in order for EPA to determine what health advisory value or health reference level to use. 

“Reaching this point in the assessment has been difficult because of the number of new publications 

continually entering the public sphere and PFOA’s complex toxicokinetics,” EPA water chief Nancy Stoner 

said at the time in the letter. 

The agency this year began requiring utilities to monitor for the occurrence of PFOA in drinking water -- 

an effort that will last until 2015. This data together with the pending risk assessment will help determine 

whether the agency should set an enforceable drinking water cleanup standard for the chemical. 

“The agency expects that we will have sufficient information to determine whether it is appropriate to 

develop a drinking water regulation for PFOA within the next 5 to 7 years,” Stoner said in the letter. 

An EPA spokesman said at press time the agency is not commenting at this point on the letter from 

Bilott. 

A DuPont spokeswoman could not be reached for comment by press time. In its Phase III report, DuPont 

says it did modify the scope of work under Phase III in 2011 in response to an EPA request. The report 

indicates DuPont conducted sampling on homegrown produce, finding two of 103 samples showing 

detectable levels of PFOA, and untreated irrigation water, finding levels of up to 10 micrograms/Liter. It 

also took soil samples, a beef tissue sample, and tested water from the Ohio River and from public water 

supplies. The company says in the report that it “believes the Phase III data set” fully addresses the 

charge established in the MOU with EPA. That charge called for sufficiently understanding sources of 

PFOA releases from the site so that PFOA migration and exposure pathways could be adequately 

characterized and assessed on a screening level basis. -- Suzanne Yohannan ( syohannan@iwpnews.com

) 

Related News: Toxics Water 

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