[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
THE DEVIL THEY KNEW
PFAS CONTAMINATION AND THE NEED
FOR CORPORATE ACCOUNTABILITY, PART II
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HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT
OF THE
COMMITTEE ON OVERSIGHT
AND REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 10, 2019
__________
Serial No. 116-58
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Printed for the use of the Committee on Oversight and Reform
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available on: http://www.govinfo.gov
http://www.oversight.house.gov or
http://www.docs.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
37-952 PDF WASHINGTON : 2019
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COMMITTEE ON OVERSIGHT AND REFORM
ELIJAH E. CUMMINGS, Maryland, Chairman
Carolyn B. Maloney, New York Jim Jordan, Ohio, Ranking Minority
Eleanor Holmes Norton, District of Member
Columbia Paul A. Gosar, Arizona
Wm. Lacy Clay, Missouri Virginia Foxx, North Carolina
Stephen F. Lynch, Massachusetts Thomas Massie, Kentucky
Jim Cooper, Tennessee Mark Meadows, North Carolina
Gerald E. Connolly, Virginia Jody B. Hice, Georgia
Raja Krishnamoorthi, Illinois Glenn Grothman, Wisconsin
Jamie Raskin, Maryland James Comer, Kentucky
Harley Rouda, California Michael Cloud, Texas
Katie Hill, California Bob Gibbs, Ohio
Debbie Wasserman Schultz, Florida Ralph Norman, South Carolina
John P. Sarbanes, Maryland Clay Higgins, Louisiana
Peter Welch, Vermont Chip Roy, Texas
Jackie Speier, California Carol D. Miller, West Virginia
Robin L. Kelly, Illinois Mark E. Green, Tennessee
Mark DeSaulnier, California Kelly Armstrong, North Dakota
Brenda L. Lawrence, Michigan W. Gregory Steube, Florida
Stacey E. Plaskett, Virgin Islands Fred Keller, Pennsylvania
Ro Khanna, California
Jimmy Gomez, California
Alexandria Ocasio-Cortez, New York
Ayanna Pressley, Massachusetts
Rashida Tlaib, Michigan
David Rapallo, Staff Director
Britteny Jenkins, Subcommittee Staff Director
Joshua Zucker, Assistant Clerk
Christopher Hixon, Minority Staff Director
Contact Number: 202-225-5051
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Subcommittee on Environment
Harley Rouda, California, Chairman
Katie Hill, California James Comer, Kentucky, Ranking
Rashida Tlaib, Michigan Minority Member
Raja Krishnamoorthi, Illinois Paul Gosar, Arizona
Jackie Speier, California Bob Gibbs, Ohio
Jimmy Gomez, California Clay Higgins, Louisiana
Alexandria Ocasio-Cortez, New York Kelly Armstrong, North Dakota
C O N T E N T S
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Page
Hearing held on September10, 2019................................ 1
Witnesses
Panel One
Robert A. Bilott, Partner, Taft Stettinius & Hollister LLP
Oral Statement............................................... 2
Lori Swanson, Former Attorney General, State of Minnesota
Oral Statement............................................... 6
Matthew Hardin (minority witness), Commonwealth Attorney, Greene
County, Virginia
Oral Statement............................................... 8
Panel Two
Denise R. Rutherford, Senior Vice President of Corporate Affairs,
The 3M Company
Oral Statement............................................... 25
Paul Kirsch, President of Fluoroproducts, The Chemours Company
Oral Statement............................................... 26
Daryl Roberts, Chief Operations & Engineering Officer, DuPont de
Nemours, Inc.
Oral Statement............................................... 28
Written opening statements and witnesses' written statements are
available on the U.S. House of Representatives Repository at:
https://docs.house.gov.
INDEX OF DOCUMENTS
----------
The documents entered into the record for this hearing are listed
below, and are available at: https://docs.house.gov.
* Advanced Medical Technology Association Letter; submitted by
Rep. Comer.
* 1961 Correspondence from Dorothy Hood; submitted by Rep.
Tlaib.
* 1992 Dupont Study on Employee Cancer Rates; submitted by Rep.
Tlaib.
* Billot Letter to FDA with Accompanying 3M Study; submitted by
Rep. Speier.
* 1978 PFAS Navy Report; submitted by Rep. Wasserman Schultz.
* NDAA PFAS Letter signed by 162 House Members; submitted by
Wasserman Schultz.
* Responsible Science Policy Coalition Presentation; submitted
by Rep. Ocasio-Cortez.
* Richard Purdy Resignation Letter from 3M; submitted by Rep.
Ocasio-Cortez.
* Questions for the Record: Chairman Rouda question to witness
Rutherford, and responses.
* Questions for the Record: Rep. Keller's question to witness
Roberts and DuPont officials, and responses.
THE DEVIL THEY KNEW:
PFAS CONTAMINATION AND THE NEED
FOR CORPORATE ACCOUNTABILITY, PART II
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Tuesday, September 10, 2019
House of Representatives,
Committee on Oversight and Reform,
Subcommittee on Environment,
Washington, D.C.
The subcommittee met, pursuant to notice, at 2:03 p.m., in
room 2154, Rayburn House Office Building, Hon. Harley Rouda
(chairman of the subcommittee) presiding.
Present: Representatives Rouda, Hill, Tlaib,
Krishnamoorthi, Speier, Ocasio-Cortez, Comer, Gosar, Gibbs,
Armstrong, Keller, and Jordan (ex officio). Also present:
Representatives Dingell, Fletcher, Sarbanes, Wasserman Schultz,
and Kildee.
Mr. Rouda. The committee will come to order. Without
objection, the chair is authorized to declare a recess of the
committee at any time.
This subcommittee is holding our third hearing on PFAS
contamination focusing on the need for corporate
accountability.
I now recognize myself for five minutes to give an opening
statement.
As I mentioned, this is the third hearing this subcommittee
has held on the dangers of perfluoroalkyl and polyfluoroalkyl
substances, the manmade toxic chemicals known by their acronym
PFAS. It is the second hearing that focuses on the role of
industry and the contamination of Americans drinking water,
groundwater, air, and food supplies with these chemicals.
If the subcommittee's last two hearings haven't made it
abundantly clear, we're dealing with a national emergency here.
PFAS chemicals have been linked to serious adverse health
outcomes in humans, including low fertility, birth defects,
suppression of the immune system, thyroid disease, and cancer.
The EPA has issued a health advisory on two of the most
well known PFAS chemicals, PFOA and PFOS, and is currently in
the process of determining how these chemicals should be
regulated. The current assistant administrator for the Office
of Water at the EPA, David Ross, agreed that PFAS contamination
was, quote, a national emergency.
Several states have already taken steps to regulate these
chemicals on their own. My point is this is not a small or
emerging or ambiguous problem. It is a full-blown crisis that
our government has already acknowledged. So our goal here today
is to demand accountability for this crisis.
Our first witnesses are both attorneys, Lori Swanson, the
former attorney general of Minnesota, who led a massive case
against the 3M Company on behalf of the state of Minnesota for
the company's role in damaging the environment with
perfluoroalkyl chemicals, including PFOS and PFOA.
After eight years of litigation, 3M settled the case with
the state of Minnesota last year for $850 million, which is the
largest environmental settlement in the state's history. That
money will be used to clean up the sites that have contaminated
Minnesotan residents.
Our second witness, Robert Bilott--did I pronounce that
correctly? Bilott. Excuse me.--Robert Bilott was one of the
first lawyers to successfully sue DuPont on behalf of people
who had been exposed to PFAS chemicals and have suffered
greatly as a result, losing their livelihoods, their health,
and their family members.
Bucky Bailey, a witness at the subcommittee's July 24
hearing was one of the people Mr. Bilott defended. In 2017,
DuPont and its spinoff company, Chemours, agreed to pay $671
million for polluting the area around a DuPont manufacturing
plant in Parkersburg, West Virginia, the same plant where Bucky
Bailey's mother was poisoned when she was pregnant with him.
Representatives from 3M, DuPont, and Chemours are here with
us today. And let me say, we are not here to relitigate the
cases these companies have already settled or quibble over each
company's degree of liability. This subcommittee is not a
court, and I am not a judge. This subcommittee is here today
because we want more than legal accountability. Though legal
accountability is great too, we want ethical accountability.
I look forward to the first panel of witnesses which will
help us explain to the subcommittee why and how these companies
got away with poisoning people for more than a half century.
Because make no mistake, that is exactly what happened.
The documentation is clear. As early as the 1950's, in-
house scientists at 3M and DuPont began discovering that PFAS
chemicals were bioaccumulative, meaning they buildup in the
body, justifying their nickname ``forever chemicals,'' and
toxic. And yet despite these consensus among scientists within
both companies, DuPont and 3M continue to deny the toxicity of
long-chain PFAS chemicals.
I want everyone in the room to really think about what it
must be like to live next to a toxic waste dump with your
family, your kids, that you never knew was a toxic dump.
Imagine drinking and breathing toxic chemicals that you never
knew were toxic, because the companies who made them never told
you and suppressed the research that confirmed just how toxic
the chemicals were. And as we'll learn from the testimony,
these extensive--there's extensive documentation that confirms
that this is exactly what these companies did.
I'm not editorializing here. And this isn't faux outrage.
I'm not being hard on these companies just for show. These are
peoples' lives we're talking about. I hope everyone watching
here today will go and read more about this issue, learn more
about the extent of what has been happening over the past
several decades, because what these companies have done is
deeply immoral and shameful, and there's no other way to put
it.
So I hope we don't waste our time today on phony debates
over the science. It's almost 70 years since research on the
toxicity of these chemicals began.
The evidence is clear and convincing. Enough is enough. And
after hearing this important testimony today, this subcommittee
plans on using the information learned to press these companies
to admit that they know these chemicals are toxic and
acknowledge their past conduct of concealing important
scientific studies regarding PFAS toxicity. We will also urge
them to work together with Congress to address this national
emergency, which includes designating PFAS as a hazardous
substance under the Superfund.
I respect these companies' long and storied histories here
in the United States. And I respect the fact that these
companies have made products that Americans want to buy and
have made American's lives easier. But I'm a compassionate
capitalist. I don't think for one second that I won't hold
these companies accountable when they screw up. And these
companies with us here today have screwed up and we need to
hold them accountable for doing so.
I hope the people representing those companies here today
will admit their mistakes so that we can all move forward and
achieve what I believe is our common goal: to clean up
contaminated sites, stop exposing innocent people to toxic
chemicals, and making sure that all Americans have clean water,
clean air.
Thank you. And I now invite the ranking member of the
subcommittee, James Comer, to give a five-minute opening
statement.
Mr. Comer. Thank you, Mr. Chairman.
We're here today for the subcommittee's third hearing this
year on the large group of chemicals collectively known as
PFAS. I appreciate the willingness of today's witnesses to
appear before us.
As I've said at each of our hearings, potential drinking
water contamination is frightening for any community. And I
look forward in particular to hearing from our second panel of
witnesses, 3M, DuPont, and Chemours, about their efforts to
mitigate and remediate any contamination and to develop and use
alternatives.
It's important to remember the reason that PFAS substitutes
became so prevalent in the first place. They provide strength,
durability, and resilience in a broad range of applications
from nonstick cookware to firefighting foams that save lives.
I'd like to submit for the record a letter recently sent to
Congress by the Advanced Medical Technology Association
expressing, quote, deep concern about provisions being
considered in the National Defense Authorization Act that would
circumvent normal regulatory processes and treat all 5,000 PFAS
compounds as a single class of chemicals without the adequate
scientific data to make such a determination.
Why does the medical technology industry care about these
proposed actions? Because the medical devices made by these
companies have, for more than 50 years, been made with
fluoropolymers, a PFAS compound. Tens of millions of these
devices have been used by patients without demonstrating any
adverse health effects. In fact, they've achieved the opposite.
They've kept patients alive and healthy.
As I've told you before, Mr. Chairman, I'm committed to
working with my colleagues on solutions that will contain any
existing damage from legacy PFAS substances and reduce the risk
of future harm. But I also hope that we as a body make
responsible evidence-based, science-driven decisions. Any
legislative or regulatory actions we consider should be based
on a solid scientific understanding of the toxicity of specific
compounds.
I would also like to note some level of discomfort with
today's hearing makeup. Our second panel today made up of
private sector companies agreed weeks ago to appear voluntarily
before the committee. Only very late in the game did the
majority announce they would be joined today by attorneys
involved with multiple ongoing lawsuits with those same
companies. One of those trials is actually set to begin in
November, less than two months from now.
I'm a firm believer in the broad authority of congressional
oversight, but I've become very concerned when Congress uses
the tools in ways that can interfere with or give the
appearance of interfering with ongoing litigation.
Broad investigative letters to companies seeking documents
and information relevant to ongoing cases and last-minute
surprise invitations to hearings for attorneys involved in
multiple lawsuits against those companies may raise questions
for some about the true purpose of these hearings.
I hope this subcommittee will commit to doing its best to
refrain from interfering or appearing to interfere with ongoing
litigation as we move forward.
Today, I hope we will spend some time discussing EPA's PFAS
Action Plan which the agency released in February of this year.
In it, EPA outlined a number of short-and long-term actions to
minimize risk, increase scientific knowledge about the broad
range of PFAS substances, prevent exposure, and cleanup
existing contamination. The Plan also outlines EPA's actions to
coordinate with other Federal agencies in state, local, and
tribal governments to address the issue.
I look forward to hearing from our second panel of
witnesses what their view of the Action Plan is and what they
think can be done to make it more effective.
Thank you, Mr. Chairman, for today's hearing. And thank you
for the witnesses who appeared before us.
Thank you. I yield back.
Mr. Rouda. Thank you.
Now I want to welcome our first panel of witnesses. Robert
Bilott, partner, Taft Stettinius and Hollister LLP; Lori
Swanson, former attorney general, state of Minnesota; and
Matthew Hardin, commonwealth's attorney, Greene County,
Virginia.
If the three of you would please stand and raise your right
hands, and I will swear you in.
Do you swear or affirm that the testimony you're about to
give is the truth, the whole truth, and nothing but the truth,
so help you God?
Please be seated.
Let the record reflect that the witnesses answered in the
affirmative.
The microphones can be a bit sensitive, so please make sure
you turn them on and--with that little button in front of you
and that the microphone is close to you.
Without objection, your witness statement will be made a
part of the record.
With that, Mr. Bilott, you are now recognized to give an
oral presentation of your testimony.
STATEMENT OF ROBERT A. BILOTT, PARTNER, TAFT STETTINIUS AND
HOLLISTER, LLP
Mr. Bilott. Thank you.
Good afternoon. Thank you for the opportunity to testify
today.
My name is Rob Bilott, and I'm a partner with the law firm
of Taft Stettinius and Hollister out of their Cincinnati, Ohio,
and Northern Kentucky offices. I've represented injured
parties, parties injured by PFAS contamination, for more than
the last two decades. But I'm not here today speaking on behalf
of any client, but I'm here in response to a request from this
subcommittee for information about a pending nationwide public
health threat posed by PFOS chemical contamination.
The public may only now be realizing the scope of this
problem, but the companies that manufactured these chemicals
have been aware of the risks for decades but failed to alert
the rest of us. I know because I spent the last 20 years of my
career in litigation with these companies, pulling out of their
own internal files what was already there and was already known
about the risk of these chemicals.
For example, by the 1960's and 1970's, DuPont had data in
its files from animal studies showing toxic effects in multiple
species: rats, dogs, rabbits, monkeys. Multiple different types
of organ systems: the liver, the testes, the adrenals.
By the end of the 1970's, DuPont knew that PFOS was
building up in the blood of humans and staying there for long
periods of time. By the 1980's, DuPont was concerned about
liver damage and birth defects among its own PFOS-exposed
workers. DuPont even classified PFOA as a confirmed animal
carcinogen, possible human carcinogen, by 1988 after a rat
study showed that the chemical caused testicular tumors.
A second study emerged only a couple of years later
confirming again, not only testicular tumors, but this time
also pancreatic and liver tumors. During the 1980's and 1990's,
the company also monitored and was concerned about increased
cancer rates among its own workers.
During the 1980's and 1990's, DuPont even found the
chemical in the local public drinking water supply as early as
1984 and at levels above its own internal safety guideline, but
did not alert local officials or any of the members of the
public drinking that water.
As this troubling evidence continued to mount over the
years, DuPont, rather than stop using this material, actually
went forward and constructed its own PFOA manufacturing
facility in North Carolina to continue using and releasing even
more of the chemical, even after 3M announced that it would
stop any further manufacture back in 2000.
When the community drinking this contaminated water outside
of DuPont's plant in West Virginia finally learned of the
problem, DuPont publicly denied that there was any evidence of
harm, denied its own internal science.
In response, we actually ended up sitting down with DuPont
and created an independent panel of scientists back in 2004
whose purpose was to look at all of the existing evidence and
conduct new studies of the impacted community members to
determine what the real risks of drinking this in the water
were. These independent scientists, referred to as the C8
Science Panel, ended up analyzing data from over 69,000 people,
conducted over a dozen completely new studies, some of the most
comprehensive human health studies done on any chemical ever.
They not only looked at that new data from the new studies,
they took all of the evidence. They weighed all of the
evidence, all of the animal studies, all of the human data, all
of the available data, weighed it all to make a conclusion as
to whether or not there were scientific links between drinking
this in the water and actual human disease. That took seven
years, over $30 million, to find out what the answer to that
was.
By 2012, this independent panel of scientists had
concluded, yes, drinking this in the water was linked with six
different serious diseases, including two types of cancer:
kidney cancer and testicular cancer. The same type of cancer,
by the way, that was found in the rat studies decades earlier.
This is independent scientists who weighed all of the
evidence. That independent scientific review has occurred.
Independent scientists have looked at this data, all of the
data, and confirmed links with human disease.
Unfortunately, despite all of this data that now exists,
after years of litigation to pull this information out and to
make it public after gag orders, protective orders, et cetera,
now that this information is finally there, unfortunately, EPA
still has not acted.
I first warned EPA 18 years ago, and we are still here. We
have more than enough evidence. It's time to move forward and
act to protect the American public.
Thank you.
Mr. Rouda. Thank you, Mr. Bilott.
Ms. Swanson, you are now recognized for five minutes.
STATEMENT OF LORI SWANSON, FORMER ATTORNEY GENERAL, STATE OF
MINNESOTA
Ms. Swanson. Thank you, Mr. Chairman, ranking member,
members of the committee. I appreciate the opportunity and
invitation to be here today.
In 2010, I was serving as attorney general of my state of
Minnesota and filed a lawsuit against 3M Company for damaging
my state's natural resources through its manufacture and
disposal of PFAS. Our lawsuit alleged that 3M contaminated the
aquifers that supplied drinking water to over 100,000 Minnesota
residents.
The lawsuit settled last year on the morning the trial was
to begin. The settlement required 3M to pay $850 million to the
state of Minnesota to bring long-term clean drinking water
solutions to my state and another $40 million in short-term
solutions. I have been told that it's the third largest natural
resource damage recovery in the Nation's history.
The lawsuit lasted over seven years and involved the
production of 27 million pages of documents, about 200 witness
depositions, testimony of world-renowned scientists, and over
1,500 court filings. Public records and public trial exhibits
in that lawsuit show that 3M knew but concealed information
about the dangers of these chemicals for decades, some of which
the public is just now discovering.
In many ways, Minnesota, my state, is ground zero, for the
PFAS contamination that confronts the country. After the war,
World War II, 3M bought the patent to develop PFAS and then
started to manufacture these chemicals and ship them around the
entire country. Unfortunately, 3M knew about the risks of the
chemicals to the drinking water, the environment, and human
health for decades but concealed its knowledge, subverted the
science, and kept pushing the chemicals out the door.
In 2000, when it stopped making some forms of PFAS, 3M was
making about one half a billion dollars a year from the
products that were discontinued.
And what did 3M know about PFAS prior to the year 2000? I
refer you to Exhibit A of my testimony. It shows that in 1997,
3M gave DuPont a material safety data sheet with the label that
said: ``Cancer: Warning: Contains a chemical which can cause
cancer,'' citing 1983 and 1993 studies it conducted with
DuPont. But 3M removed that label the same year and for decades
sold PFAS without warning the public of its dangers.
We know that 3M told employees not to write things down
about PFAS and to mark documents ``attorney-client privilege,''
regardless of whether attorneys were even involved. We know
that in 1998, a committee of 3M scientists recommended the
company notify the EPA the chemicals were widely found in human
blood, but a 3M executive overruled them.
Then in 1999, a 3M scientist blew the whistle on 3M. He
resigned and sent his resignation letter to the EPA. And he
said that 3M ecotoxicologists urged the company for two decades
to perform ecological risk assessment of PFOS, but the company
dragged its feet, and that the company misleadingly downplayed
to regulators the presence of these chemicals through the food
chain transference.
An issue in our lawsuit was what did 3M know and when did
it know it. We know that throughout the 1950's, 3M's own animal
studies found PFAS to be toxic. By the 1960's, it knew the
chemicals don't degrade in the environment. In 1970, a company
that purchased 3M's firefighting foam had to abandon a test of
the product because all the fish died.
And then in 1975, two independent scientists, Dr. Warren
Guy and Dr. Donald Taves, found fluorochemicals in blood banks
throughout the country, and they called 3M to say we think your
chemical is causing this. And 3M pled ignorance, in its words,
claiming that Scotchgard didn't contain these chemicals, and
concealing from the scientists who wanted a chemical footprint
that information. In doing so, the company thwarted the broader
scientific community's understanding of the health impacts of
these chemicals for a generation.
We know that 3M soon replicated the studies and confirmed
that PFAS was found in human blood. In 1979, 3M's lawyers
advised the company to conceal that PFOS was in human blood. We
know that 3M concealed from the EPA for more than 20 years that
PFAS was in human blood.
By 1976, 3M knew the chemicals were in the blood of workers
at much higher levels but didn't make this public. By 1978, 3M
knew the chemicals killed monkeys. We know that in 1981 the
company knew that the chemicals caused abnormalities in
pregnant rats. And by 1988, a company that purchased PFAS
firefighting foam complained to 3M that it falsely claimed the
product was biodegradable when it wasn't.
A few months later, a 3M employee wrote an internal memo
that 3M should stop perpetrating the myth that these
fluorochemical surfactants are biodegradable, but the company
continued to sell them.
Testimony in our lawsuit showed that by 1993, 3M knew that
there was some evidence that lactating goats transferred PFAS
to their kids in milk and that it was likely that human mothers
would do the same thing. But it wasn't until 23 years later
that EPA issued a health advisory cautioning pregnant women and
breast-fed infants to avoid these chemicals out of concern
that, just like with goats, a mother can transfer the chemicals
to her fetus or baby through the placenta or breast milk.
Mr. Chairman, members, I appreciate the opportunity to be
here today and talk about these issues, and look forward to
Congress being part of the solution.
Mr. Rouda. Thank you very much.
The next witness, Mr. Hardin, who was just added to the
witness list yesterday, and I just received your opening
statement an hour ago, please proceed with five minutes of
opening testimony.
STATEMENT OF MATT HARDIN, COMMONWEALTH'S ATTORNEY, GREENE
COUNTY
Mr. Hardin. Thank you, Mr. Chairman and ranking member.
Thank you as well to the members of the committee for inviting
me to testify today.
My name is Matthew Hardin. And although I testify in my
individual capacity, I currently serve as the chief prosecutor,
which is called the commonwealth's attorney, in Greene County,
Virginia. I was previously a litigator from 2014 to 2017, and I
used federal and state freedom of information laws to obtain
government documents nationwide.
I'm here today because many of the public records that I
and my colleagues obtained detailed a campaign by plaintiffs'
attorneys and activists to recruit, quote, a single sympathetic
state attorney general or even grand juries convened by a
district attorney, unquote, to subpoena records of private
parties targeted by the tort bar.
This campaign was, in fact, successful, as headlines well
document, and was followed by a coordinated effort by political
donors, again with the assistance of activists, to enlist state
law enforcement apparatuses to investigate private parties and
otherwise support a private agenda.
A report released by the Competitive Enterprise Institute
and authored by Christopher Horner entitled, ``Law Enforcement
for Rent,'' details many of the documents I helped uncover. The
lead plaintiff's attorney behind the effort to recruit
attorneys general admitted the campaign's political nature in
addition to its pursuit of financial settlements in an
interview with The Nation Magazine.
Among other things, he said legislation is going nowhere,
so litigation could potentially play an important role. Also,
apparently recognizing the problematic nature of these
collaborations, the same plaintiff's attorney worked with
attorneys general offices against which I litigated, Vermont
State and New York State, to mislead a reporter from The Wall
Street Journal who called apparently to inquire about a
separate issue entirely.
One Federal court noted this behavior asking: Does this
reluctance to be open about collaborating with plaintiffs'
attorneys and activists with a litigation agenda suggest that
the attorneys general are trying to hide something from the
public? My experience and the experience of others forced to
litigate numerous open records requests to determine how public
offices came to be used in this way suggests the answer is yes.
One public record I obtained in litigation in the Vermont
courts was an agenda for a meeting among activists, prospective
funders, attorneys general offices, and plaintiffs' lawyers
titled ``Potential State Causes of Action Against Major Carbon
Producers.'' One academic hosting the meeting described it to
attorneys general offices as a, quote, private event for staff
from state attorney general offices, unquote, to pursue this
agenda. One academic invited to address the gathering boasted
in an email to a major donor to her institution and the host
institution that this meeting was, quote, about going after
climate denialism along with a bunch of state and local
prosecutors nationwide, unquote.
It is difficult to imagine this being anything other than a
national scandal and the subject of numerous Pulitzer Prize
winning news stories if the players and agenda were different,
which may be why so many media and constitutional watchdogs
have chosen instead to avert their gaze. As such, this sort of
behavior is becoming normalized and expanding to the point that
congressional committees are apparently joining in.
Please note that if it is acceptable involving parties and
issues you favor, it is also acceptable involving parties and
issues you do not favor. If the growing use of public office to
assist private litigants is permitted to stand here, what is
the limiting principle dictating that the National Rifle
Association, pro-life groups, or chemical and fossil fuel
companies cannot also chair such use of law enforcement and
otherwise use public office to support their end.
I come to this committee both as a prosecutor and to offer
my experience on these matters as a civil litigator. I believe
in the rule of law and that all citizens are entitled to
participate in democracy and have their day in court, if they
so choose. But I also appear today concerned that private
donors and activist groups are seeking to thwart the fair and
neutral workings of our democratic policymaking and our
litigation system, including our law enforcement apparatuses
and court system.
Civil and criminal litigants are entitled to discovery
under the rules of court that apply in their cases. The
American system of justice is the envy of the world, and our
courts are more than capable of applying those rules equitably.
But what I saw happening as a private litigator was a
perversion of justice. Rather than filing suits and seeking
their day in court like any other litigant, powerful special
interests sought to enlist law enforcement to obtain public
records seemingly to assist their tort litigation campaigns as
well as to make policy through the use of law enforcement
office. When tort lawyers teamed up with attorneys general
using either common interests or succumbent agreements, the
public showed an interest in what its government was up to, and
many citizens and interested groups filed freedom of
information or state-level equivalent requests. But those
requests were frustrated over and over again as states
attempted to hide these records.
The public has a potential interest or a substantial
interest in learning how private law firms are recruiting
elected officials to further private goals and what, if any,
discussions these private attorneys have with the government.
I'm calling on this committee to let the justice system
work the way it was intended to. Let's try civil cases in civil
court, get prosecutors back in the business of prosecuting
crime, and get Congress and this committee back focusing on its
Article I responsibilities.
Thank you, Mr. Chairman.
Mr. Rouda. Thank you, witnesses, for your opening
statements.
At this time, the chair recognizes Representative Tlaib for
questions.
Ms. Tlaib. Thank you, Mr. Chairman.
I really do appreciate, Mr. Bilott, that you're here at
this subcommittee, and we really thank you for your important
work that you've done to hold DuPont accountable for its decade
of wrongdoing. I know from some of my own struggles to hold
corporate polluters accountable in my own district that these
are long, hard battles, and I appreciate the commitment you
have made to our public health.
Michigan has the most PFAS sites in the country, at least
192 as of May 2019 out of at least 610 known sites across the
country. Last year, when the state tested public water systems
serving nearly 80 percent of our residents, 10 percent of those
systems showed PFAS. And that PFAS in the water in our homes
and our schools, in our workplaces showed up. In Melvindale, in
my district, PFAS just oozed out of the ground into the
roadway. And residents are still searching for answers about
where it came from.
As construction began on the new international crossing,
the Gordie Howe International Bridge, PFAS was found in the
soil at the bridge site in Delray neighborhood in southwest
Detroit right next to the Detroit River where drinking water is
drawn from. This is a manmade crisis, and people like my
residents back in the 13th District are the ones who suffer
from it.
I want take some time here today and walk through some of
the key documents that prove that DuPont knew of the dangers of
PFAS chemicals for decades and concealed this truth from
Michiganders and all Americans, putting their greed over the
public welfare.
First, Mr. Chairman, I would like to enter into the record
a 1961 correspondence from Dorothy Hood, who had served as
chief toxicologist for DuPont. In this correspondence, Ms. Hood
states that PFAS should be handled, quote, with extreme care,
and stated that animal studies conducted by DuPont found liver
enlargement.
You have been engaged in extensive litigation against
DuPont and have reviewed thousands, if not millions, of
documents by the company. Based on your review of these
documents, approximately when did DuPont become aware of the
PFAS was toxic?
Mr. Bilott. Thank you for your question, and thank you for
the comments.
And, first of all, you know, you mentioned the fact that
there has been such a widespread presence of PFAS detected in
Michigan. That's because Michigan is one of the first states to
comprehensively look for it and test. And unfortunately, I
think what we are about to see is the same thing across the
country as more places test.
Now, with respect to the information you mentioned from the
DuPont files, it took many years to pull that information out
of the DuPont documents. But what became very clear is that the
company was well aware by the early 1960's, as reflected in
that document you just referred to from 1961, that the
chemical, PFOA in particular, was toxic and had various adverse
effects. There were numerous laboratory studies going on within
the DuPont Haskell Laboratory throughout the sixties and the
seventies.
And what we tried to do, because there's so much
information and so many documents from DuPont's own files, I
submitted with my written testimony several court orders,
actually, from a Federal court in Ohio where a lot of that
evidence actually was presented to juries who reviewed all of
that evidence, spent weeks going through all of this
information. Tons of documents from within the DuPont files.
And those court orders, the reason I submitted them is
because they give you a nice snapshot in summary of some of
that key information, some of the key documents organized in
chronological order that were reviewed by the court. And, in
fact, when those documents were presented to juries in Federal
court, those juries found that DuPont acted with conscious
disregard of the risks that were reflected in those documents.
Ms. Tlaib. Any of those include documents--studies that
they were aware of that PFAS was a health risk?
Mr. Bilott. Oh, yes. Yes. There are plenty of documents
within the files. Again, you're talking about documents that
first started off with animal toxicity testing. And we know. We
do the animal toxicity----
Ms. Tlaib. On top of your head, what are some of the things
that they found in those studies? I know you submitted it for
document--and, Mr. Chair, if I may, I'm going to submit a study
that showed, in 1992, that showed that DuPont observed
increasing cancer rates among DuPont employees at that time.
But in the process, I really want the public--for us to be,
you know, very, very direct about what exactly was found in the
studies specifically that was causing the cancer.
Mr. Bilott. There were--the animal studies showed that PFOA
actually caused cancer, liver tumors, pancreatic tumors,
testicular tumors. DuPont had a corporate epidemiology
department that actually tracked the incidence of cancer within
the workers that were working at the plant handling PFOA. And
repeatedly, the corporate epidemiology department found
increases in cancers, including kidney cancers.
So there were animal study data that supported the risks to
human health. And that's why the animal studies are done, to
predict human health. And there was actual human data from the
worker studies as well.
What was missing at that point in time was what it was
doing in the community, which the science panel then filled in.
So we have animal, worker, and community data.
Ms. Tlaib. Thank you so much.
Thank you, Mr. Chairman.
Mr. Bilott. Thank you.
Mr. Rouda. Thank you.
The chair now recognizes Representative Comer for five
minutes of questioning.
Mr. Comer. Thank you.
I'm very interested in this issue, like everyone on the
panel. And I'm very passionate about having clean drinking
water. And I think that, you know, the role should be to figure
out how can we ensure that every American is protected from
this and that we have clean drinking water. I think the next
panel will do--will be a more productive discussion than the
first.
But we have some attorneys. And, Mr. Hardin, I wanted to
focus on litigation issues and the legal process, because I
tend to believe that sometimes the trial attorneys make things
last longer--make things take longer. You know, we've got a
problem here that needs to be fixed, and I worry that sometimes
the ongoing litigation tends to delay the process.
But, Mr. Hardin, we've seen a trend in state attorneys
general contracting with outside law firms to conduct
environmental litigations on the state's behalf against
corporations, correct? On what basis are these outside law
firms paid, typically? On a contingency fee basis or how?
Mr. Hardin. We have seen a rise in contingency fee
agreements nationwide. And I think that that's part of the
problem, is I think that it incentivizes private gain and it
takes these offices away from litigating truly in the public's
interest and toward litigating in a pecuniary interest.
Mr. Comer. I'm curious. In your experience, have state
attorneys general been forthcoming and transparent about their
relationship with outside law firms in these matters?
Mr. Hardin. I would say that it's significantly less than
transparent. I think that when people file open records
requests, they're consistently frustrated. And we've learned a
little bit, but I'm sure there's more to come out.
Mr. Comer. Mr. Hardin, you spoke on your work as a
litigator using the Freedom of Information Act to obtain
government documents as it pertained to a campaign by
plaintiffs' attorneys to recruit, quote, sympathetic attorneys
general. And you spoke about, in your opening testimony, the
findings in that report.
There are many ongoing civil suits and many more likely to
come. Do you see similarities between what you found with state
attorneys general partnering with plaintiffs' attorneys and
Congress potentially involving itself in ongoing litigation?
Mr. Hardin. Yes. And I think that this--it was already bad
enough when law enforcement was teaming up with private
attorneys, because you're sort of blending private and public
power. And now when Congress is putting its thumb on the scale
through the oversight process, I think that just further
thwarts the normal working of the judiciary.
Mr. Comer. Mr. Bilott, you led the class action lawsuit
against DuPont in the early 2000's, which ultimately settled in
2004. Is that correct?
Mr. Bilott. That's correct.
Mr. Comer. It's been reported that you and your firm earned
$21.7 million from that settlement. Is that correct?
Mr. Bilott. You know, we're talking about litigation that
actually started in 1999 and stretched over 20 years. You know,
we're talking about litigation that our firm financed and had
to actually, you know, push forward for 20 years on its own.
And does the firm actually end up getting paid at some point?
Yes, the law firm ended up getting paid.
But the only way we know about what we know right now about
PFAS was from that litigation, from the community members
coming forward and actually pursuing claims and digging this
information out of the companies. We would not know any of this
today if it hadn't been for that litigation and the 20 years
that it took to pull this information out of those companies'
files.
The companies took steps to prevent the disclosure of that
information. DuPont tried to get a gag order to prevent me from
even speaking to the EPA about the health risks of these
chemicals. Back in 2001, 3M got a blanket protective order in
litigation in Minnesota to prevent any public disclosure of its
internal documents. They kept those documents secret----
Mr. Comer. Okay. You've made your point.
Have you earned attorney's fees in connection with any
subsequent PFAS-related lawsuits?
Mr. Bilott. I am a partner with a law firm. Our law firm--
--
Mr. Comer. I'm familiar with the law firm.
Mr. Bilott. Our law firm receives compensation.
Mr. Comer. So can you give us a ballpark figure on those
fees, out of curiosity?
Mr. Bilott. You know, I can't.
Mr. Comer. Was it a million? Less than a million? I'm just
trying to learn more about----
Mr. Bilott. I believe all of the fee awards were awarded by
a court. The court determines what fees are appropriate for the
attorneys based on the number of years of litigation.
Mr. Comer. Last question. My time's up. Do you have a book
coming out in a few weeks about your life and the PFAS
litigation?
Mr. Bilott. Yes, there is a book. And, in fact, you know,
people have been asking me, how did this happen? How is it that
all of this information could be known about these chemicals?
All of this information could be--could be known. This
contamination can occur on a nationwide----
Mr. Comer. And this last thing, and I have to yield back.
So you'll receive royalties on that book, correct?
Mr. Bilott. I guess that would depend on whether or not the
book sells. But I'm not here to talk about a book. I'm here to
talk about what these companies knew about this information.
I'm not here to talk about me. I'd like to talk about what we
learned from these companies and why there's now a public
health threat.
Mr. Comer. Thank you.
Mr. Rouda. Thank you.
The chair recognizes Representative Speier.
Ms. Speier. Thank you, Mr. Chairman.
You know, we have a President of the United States whose
had ghosts written many books on his behalf. I don't hear us
asking him how much he's getting in royalties from that.
I'm astonished by the questioning that you were just
presented with. If I'm not mistaken, we have companies here who
deliberately chose not to reveal very--negative information
about PFAS that they were selling and chose to hide it from the
American people. And they did so and probably were gaining
bonuses every year.
Are we asking them did they receive a bonus from hiding
this from the American people? That's astonishing questioning
that we just heard. And I apologize, Mr. Bilott, for the fact
that you had to go through that. But that's the way we are
these days.
Let's look at, not the reality, the fact that corporations
continue to do this, like the tobacco industry continued to do
that, hide it from the American people, and do so with the
understanding that this is a cost of doing business. And if
somewhere down the road, some 20 years later we get caught,
we'll pay out a few hundred million dollars, but that won't
affect our stock. It's a cost of doing business. It's shameful.
I understand you investigated a 2001 study sponsored by 3M.
In a letter to the U.S. Food and Drug Administration, you
characterized the study as confirming elevated levels of PFAS
in the U.S. food supply. Is that correct?
Mr. Bilott. Yes. In fact, 3M had completed a study looking
at the presence of PFAS in a variety of different food, milk,
vegetables, bread, in different cities across the country and
found PFAS in milk, bread, etc., in 2001.
Ms. Speier. Mr. Chairman, I'd like to enter Mr. Bilott's
letter as well as the 2001 3M study into the record.
Mr. Rouda. Without objection, so moved.
Ms. Speier. So, Mr. Bilott, most people have been focused
on the contamination in water. But in your letter, you
reference levels of PFAS contamination in apples in Alabama,
ground beef in Florida, and milk in Georgia, just to name a few
examples. There are about 800 parts per trillion. Based on
these numbers, it seems like PFAS contamination extends into
our food supply.
Is there a red flag that should be going up in every
household in America, that we are purchasing food products that
contain PFAS that are going to have a deleterious effect on our
families?
Mr. Bilott. I have been trying to get the attention of the
Federal agencies for over 18 years to look at this and to look
at what's already known about what is out there. Where the PFAS
being found. Not only in water but in food as well. And we now
know wastewater treatment systems, for example, are taking
waste in the water, consolidating this stuff, and they're
ending up with very high levels of PFAS in biosludge that's
given to farmers across the country, where this sludge is
spread on agricultural fields which could be major sources of
PFAS for intake by the crops and by the animals.
This is something I've been trying to get our Federal
agencies to pay attention to for quite some time now, and
that's why I'm very happy to be able to be here. I've had this
situation before. I'm familiar with it with if you can't
address the facts, try to attack the messenger. So I'm used to
that. That's been going on for 20 years.
But that's not going to stop me from trying to at least
elevate folks' attention to what we know about this health
threat and what we ought to be doing about it, because this
information goes back decades.
Ms. Speier. Ms. Swanson, you've shown extraordinary
leadership, thank you, on behalf of the American people. I know
you were representing your state in Minnesota.
Do you think anything would have happened if you hadn't
sued 3M?
Ms. Swanson. No, I don't. I think that our lawsuit brought
to the public's attention a number of the documents we're
talking about today. But for decades, 3M concealed information
about the risks of these chemicals to the environment as well
as to public health.
Ultimately, this was a major issue facing Minnesota, as it
is a major issue facing the entire country. And it did take our
litigation to get a significant recovery for the people of our
state, and then through that, information about these
documents.
You know, 3M began, after it stopped making some forms of
PFAS, a campaign to create what they called defensive barriers
to litigation and to command the science. They selectively
funded outside research, and they got the right to review and
edit scientific papers about a PFOS before they were published.
And it even went so far to develop a relationship with the
professor and editor of one half of the academic journals in
this country about PFAS, where they paid him what we believe is
at least $2 million. And in exchange, he was able to send these
studies to 3M before they were even published so they could get
an advanced peek at them. He made sure in his timesheets that
there was no paper trail to 3M. And he even went so far as to
advise 3M to keep bad papers of the literature, otherwise in
litigation they can become a large obstacle to refute.
And so the company, unfortunately, engaged in a campaign to
hide its own studies and to, in fact, shape the science through
the funding of these other studies.
Ms. Speier. Now, that's shocking. Who is that journal
editor?
Ms. Swanson. The professor's name is Dr. John Giesy, and he
was a professor out of Michigan.
Ms. Speier. My time's expired. But if you could provide the
committee, and me in particular, any suggestions that you think
we should contemplate in Congress to address that particular
issue in general and accountability by corporations as well.
Thank you. I yield back.
Ms. Swanson. I'd be happy to.
Mr. Rouda. Okay. The chair now recognizes Representative
Gibbs for five minutes of questioning.
Mr. Gibbs. Thank you, Mr. Chairman.
You know, I think if any companies out there hid things and
didn't reveal things to the public and stuff, that should be
sorted out in the courts, which I think has happened. Let the
judicial system do that. We shouldn't relitigate. I don't think
that's our role. That should be sorted out in the courts. And
what our role should be, determining, moving forward, what
research needs to be done to make sure we protect the public
and get the facts straight.
And I guess I want to be clear. I see that last month, the
Advanced Medical Technology Association wrote a letter to the
Senate expressing deep concern about provisions in the NDAA Act
that would circumvent the normal regulatory process that would
treat all 5,000 PFAS compounds as single class of chemicals.
And their concern is not with adequate data to make that such
determination.
And I would go on to say I believe some of these PFAS, like
fluoropolymers that have been used for like 50 years, that has
some good medical benefits and hasn't demonstrated adverse
health effects. So I guess my first question to the first two
witnesses over here is, I'm trying to understand this a little
better. There's 5,000 compounds that make up this category. Is
it dangerous to categorize them all as one and go after them or
has there been enough research, scientific data, to show what
compounds might be hazardous and what might not be, or do you
think the whole class of compounds should be?
Mr. Bilott. Thanks for the question. I think what we do
know is that it took this long to find out what the companies
already knew about one of these chemicals, PFOA. It took many,
many years to dig out what was already known about that
chemical. And what we now know about PFOA is enough to know
that is something that we really need to take action on.
And the scientific community, looking at what we know about
PFOA and looking at the chemical similarity of these other
chemicals in the class, that has raised enough red flags to say
we need to be looking at this entire class of chemicals.
Because we don't know what else--what other information is
already out there that we don't know about.
We were told for years that PFOA was perfectly fine. There
are no health effects. There's no evidence of harm.
Mr. Gibbs. That was the chemical company telling you? That
wasn't FDA or EPA? What scientific research was there?
Mr. Bilott. That's what I'm--when we first learned that
PFOA even existed and that people were being exposed to it,
1999, 2000 timeframe, the companies were telling us, don't
worry about it. There's no health effects. There's no evidence
that it hurts anybody. It took years of litigation to find out
that was not true.
Mr. Gibbs. So what was the role of the regulators during
that time?
Mr. Bilott. I was doing my best, during that period of
time, to funnel as much of the internal information,
nonconfidential, from within the company files about the health
effects of these chemicals to the regulatory agencies so they
could take action. That's been going on for 18 years. Those
agencies have more than enough information about PFOA, about
the related chemistry to act.
Mr. Gibbs. Okay. I want to move on.
Ms. Swanson, you settled a lawsuit with 3M, $850 million. I
guess, how much, do you know what the contingency fee was for
the attorneys? Do you know?
Ms. Swanson. Mr. Chairman, Member, I think it came to about
12.9 percent of the total settlement.
Mr. Gibbs. 125 million?
Ms. Swanson. I think that's right.
Mr. Gibbs. Okay. So that leaves about 720 million left.
Ended up with 739 million, because you got interest, because
interest rates were higher back then.
Ms. Swanson. Correct.
Mr. Gibbs. But apparently, the money is still sitting
there. Minnesota hasn't used the money to do medical care,
water testing, any remediation or anything. Is that true? Is
the money still sitting there?
Ms. Swanson. Mr. Chairman, Representative Gibbs, there was
a working group formed under the settlement. And the working
group, which concludes 3M and community leaders, local
governments, are evaluating the best way to appropriate the
moneys.
Essentially, the purpose of the settlement and the
limitation----
Mr. Gibbs. This settlement was in 2010, right?
Ms. Swanson. No. 2018. Just last year.
Mr. Gibbs. Okay. I missed that.
Ms. Swanson. And, essentially, I didn't have authority to
get medical injury damages or injury--recoveries for injured
people, so the settlement was for damages to the state's
natural resources. Under the settlement, the money is going to
go to bring clean drinking water solutions to these hundred-
and-some-thousand Minnesotans who have contaminated aquifers
and contaminated private wells. And the working group
compromised of local units of government and 3M and the state
of Minnesota are trying to figure out the best ways to
appropriate that money in order to bring these solutions.
If there's money left after the drinking water is dealt
with, then it will go to clean up the natural resources and to
deal with remediation of, you know, fishing habitats and
wildlife and things of that nature.
Mr. Gibbs. Okay. My time is up, Mr. Chairman. I just want
to reiterate that we should make sure we're not relitigating
these cases, and working for how we should do more research and
finding more answers to solutions to protect our drinking water
and food supply.
I yield back.
Mr. Rouda. Great. Thank you.
The chair now recognizes Representative Dingell.
Mrs. Dingell. Thank you, Mr. Chairman. And I really thank
you for your leadership on this issue.
This hearing is really important for so many ways, because
we're trying to get to the truth. And we've got too many
communities that are being impacted by this. We don't know how
to clean it up. We don't know what the long-term effects are.
In order to properly address PFAS contamination in America,
we've got to understand the full scientific history behind the
health risks and its uses. What did corporations know and when
did they know it, and where is this contamination and how are
we going to clean it up?
Michigan has more sites than any state in the country right
now, but that's because we're testing for it. We have more than
70 sites. And if other states begin to test, we're going to see
more of these. It is in the water that some people are
drinking, though our state is testing water to clean it up.
It's in the fish we eat. And communities that rely on it are
now being told the fish aren't going to be safe for five, ten,
15 years.
Foam's washing up. And if you're in my district, you're
lucky enough now that the fire foam that we're going to--that
people are convincing people not to use has to be destroyed or
stored someplace. And people in my district may be getting that
as well. So it's impacting Republican and Democratic districts.
It's not a partisan issue.
I would like do direct my first questions to Attorney
General Swanson. When did 3M scientists first learn that PFAS
could enter our bodies through food?
Ms. Swanson. Mr. Chairman, Representative Dingell, I don't
have the answer on food, but I can tell you they first learned
that it was in human blood in 1975. There were two doctors who
came forward, independent scientists, and they were testing
blood in blood banks as far away as New York and Texas. And
they came forward and they said these chemicals are in the
blood and we think it's your chemical in the blood.
3M pled ignorance. Said, you know, we're not going to admit
that. And then the scientists said, could you give us a
chemical fingerprint of these chemicals so that we can do more
testing to show that it's your product chemical in Scotchgard
causing this. And 3M said flat out, no, we're not going to
cooperate and provide you with that information.
3M confirmed that the very next year that it was in human
blood, but it took 20 years for them to tell the EPA and the
public. In fact, 3M, in 2006, was fined $1.5 million by the EPA
for failing to provide studies that were required to be filed
under TSCA, and in many cases, for decades failed to provide
studies.
Mrs. Dingell. So I'm going to ask you some questions
quickly, because we're down to two minutes, and they're some
important ones.
Is it better for the health of the American people and our
environment to address the PFAS crisis through continuing
litigation or do we need to get some legislation to address
this?
Ms. Swanson. Mr. Chairman, Representative Dingell, I think
it's going to be both. But I think it's very, very important
that Congress act to help bring global solutions to this
problem.
Mrs. Dingell. How would designating PFAS as a hazardous
substance under the Superfund program hold responsible parties
accountable for the PFAS contamination that they've caused?
Ms. Swanson. Mr. Chairman, Representative Dingell, it would
be very helpful to call it a hazardous substance under CERCLA,
because it will bring to bear known processes for cleaning up
these chemicals in communities. It would also help deal with
the cleanup around military institutions and bases where the
military hasn't really been very quick to clean it up, and
soldiers are drinking this water, and their families. So it
would be very helpful for Congress to do that.
Mrs. Dingell. So do you think it's--we currently have an
amendment on the DOD bill that would require that, because as
you know, EPA has yet to even set a rulemaking to set the
standard. It's only a guideline.
So would designation of that increase or speed up the
beginning to clean this up and people recognizing how important
it is to deal with this pollutant?
Ms. Swanson. Mr. Chairman, Representative Dingell, yes, it
would very much expedite the process for that to happen.
Mrs. Dingell. What specific actions have you taken as AG to
hold PFAS polluters accountable? And how can other states in
the federal government follow what you've learned?
Ms. Swanson. Mr. Chairman, Representative Dingell, it was
the companies' products that created this problem. It wasn't
communities that created it. It wasn't individual homeowners
who created it. It wasn't patients who created it. It was the
companies that develop widely popular products and sold them.
And then when they learned that the products were dangerous to
public health and the environment, didn't disclose it. They
didn't come clean. And so I think it's very important for the
companies that contributed to the problem to be part of the
solution and help fund the cleanups.
What we did in Minnesota was file the lawsuit against 3M
that recovered $890 million to help bring clean water to
solutions to our state. I think other communities across the
country are going to have to look at similar actions because
this is a very large and significant problem.
Mrs. Dingell. Thank you.
And I'd like to ask one yes-or-no. Is that amount of money
going to cover cleaning up all the sites that you have there?
Ms. Swanson. Mr. Chairman, Representative Dingell, yes.
Mrs. Dingell. Thank you.
Mr. Rouda. Thank you.
Without objection, the representatives from Michigan,
Texas, and Maryland are authorized to participate in today's
hearing.
And we have been called to vote. So what we're going to do
is I am going to ask Congressman Sarbanes behind me to take
over the chair so that he can ask questions while we all go
vote. And then he's going to sprint over there and do the same.
And after he finishes his questioning, we will move into recess
with the next panel.
So I thank the three of you, but please stay there.
Mr. Sarbanes.
[Presiding.] Thank you.
I'm going to yield myself five minutes to ask questions to
the panel. I appreciate you being here.
Mr. Bilott, I wanted to address most of my questions to
you. You, at this point, I would say, have made a study of the
culture in these corporations in terms of hiding the ball over
a period of decades. And I'd like you to speak a little bit to
that, because I've seen in the record that you've already
created, with the testimony that's been submitted, plenty of
instances in which employees inside these companies were trying
to raise the alarm, call attention to the risks that were being
discovered as a result of testing and other evidence that was
coming forward. And essentially, they were run over by
supervisors, by executives, by lawyers, whatever, which seem to
reflect a culture that had taken hold that was making
decisionmakers within these corporations disregard or
essentially deaf to these claims and concerns, which would have
the effect of being demoralizing on that part of the work force
inside these companies.
Can you speak a little bit to what your investigations and
the litigation that you engaged in uncovered about a culture
and the extent to which you think that culture, in some ways,
continues now aided by an army of consultants and lobbyists and
others that are acting on behalf of these companies?
Mr. Bilott. Thank you. You know, it took a while to piece
this together through a lot of years of combing through
internal DuPont documents. And I'll speak to DuPont at this
point. But what we saw in the documents is you've got some of
the world's best scientists at DuPont and within the Haskell
laboratories. And they were doing world-class science. They
were identifying serious health risks from exposure to these
chemicals. And you had scientists warning the company that
something needed to be done, steps needed to be taken. Let's
look for alternatives. Maybe the community should be warned.
You had lawyers within the company. We had the rare
circumstance of being able to see some of the internal
documents from lawyers warning the company, warning the
business that we ought to look into possibly getting people
clean water who were drinking this.
So what you see is you had scientists within the company
itself who were trying to do the right thing. You had lawyers
who were trying to advise the company to do the right thing.
Yet, unfortunately, there's a memo from 1984 that I believe is
in the record, it's referenced in our attachments, where
internally the company looks at all these different factors.
And one of the concerns is this could penalize our business
going forward. The sales for these materials are increasing.
And, you know, one of the problems we're dealing with was it
was not regulated at that time.
So the decision was made to keep on using the material. Not
only keep on using it but increase the use and increase the
emissions out into the environment, despite what the internal
scientists and lawyers were warning.
And part of that--you talk about a culture. You're talking
about a situation where you've got a company that represented
itself as the science company. And, again, this was a huge
scientific operation within the company. They had thousands of
scientists. They were looked to as experts by the Federal
regulatory agencies. People at EPA. People at FDA. People
within the Federal regulatory system would look to DuPont to
tell them the truth about these chemicals.
You know, so you had a company that was controlling the
science, was able to give information to the regulators about
these health risks, and repeatedly made the decision not to do
so. Business interest won out.
Mr. Sarbanes. It makes you wonder why the companies would
hire these experts and scientists in the first place if they're
not going to give their opinion the weight that it deserved.
It's also obviously incredibly nearsighted to judge that, even
from the bottom line of a business perspective, it's going to
hurt you if you don't address those concerns, because,
obviously, these companies now are in a compromised position
because of that culture of concealment that took hold.
Whether that has become a reflex that simply cannot be
overcome, we'll see as time goes on. We'll have a chance to
probe that a little bit with the second panel.
I'm going to adjourn--or--no. Okay.
I'm going to yield to Congresswoman Wasserman Schultz,
who's going to come take the chair and ask her questions for
five minutes.
Ms. Wasserman Schultz. [Presiding.] Okay. Thank you.
Mr. Bilott, I have a question for you. The U.S. Navy, as
you mentioned, began to raise serious concerns about the
potential toxicity of firefighting foam and its harmful effects
on the environment in the 1970's. This was a series of alarming
reports. I have the report here, and this report by the Navy
noted, quote, the 3M Company has not provided any useful
information about the components of FC206, which is one of 3M's
firefighting foams.
Would you say that this represents typical behavior for 3M,
that the company has a track record of trying to suppress
harmful information related to its firefighting foam and PFAS
products?
Mr. Bilott. Thank you for the question. What I can tell you
is, in our experience in litigation with 3M, one of the very
first things 3M did was go to the court to get what is called a
blanket protective order. This is after we had been litigating
with DuPont, and we were able to get documents from the
litigation and provide them to the regulatory agencies like EPA
to warn of the health threat.
When litigation began against 3M, they immediately sought a
blanket protective order to prevent any of their internal
documents from being shared with the public or the regulatory
agencies.
And I believe as Ms. Swanson and others within the state of
Minnesota, you know, can testify to, that kind of conduct
continued for many years with respect to the perfluorinated
business, trying to keep the information about the toxicity,
the risks of these chemicals, within the company.
Ms. Wasserman Schultz. Thank you. The Navy began working
with 3M to develop firefighting foams in the 1960's. It turned
into a very lucrative business deal for the company. The
military did studies for decades, and DOD only started thinking
of the chemicals as hazardous in the late 1990's when it
started to seriously explore alternatives to foams with PFOA
and PFOS. The Air Force completed a transition to safer foams
in 2018, and the Army is scheduled to complete the transition
this year. But the Navy is not scheduled to complete its
transition until next year.
Mr. Bilott, I know you can't speak on behalf of all of DOD,
but in your view, might DOD have made this transition sooner if
3M had not been so reticent about sharing information with the
military and the public?
Mr. Bilott. I believe that probably would be possible. The
more information that had been made available about what these
chemicals are, what kind of products they are in, how we are
all exposed to them, if that information had been made decades
earlier, I think a lot of what we are talking about here today
could have been avoided. Yes, the U.S. EPA ended up bringing a
lawsuit against DuPont for withholding information, and
specifically said in that claim, if we had been given
information about PFOA, in particular, earlier, we could have
begun looking into this decades earlier.
As we already heard, 3M ended up having to pay a fine as
well for withholding information from EPA. So----
Ms. Wasserman Schultz. Yes, I mean, logic just tells you
that obviously the more transparent they were, the sooner that
we could have gotten to the bottom of this to address it and
avoided exposing literally thousands of people to harm from the
impacts.
Last question before we adjourn. In the Fiscal Year
military construction and veterans affairs appropriations bill,
I made sure--and I chair that appropriations subcommittee--that
we put in $60 million in additional funding for PFOA and PFOS
cleanup on military installations. Many military bases have
unsafe levels of PFAS chemicals in their drinking water. And to
either of you, Ms. Swanson or Mr. Bilott, what more should be
done by the Federal Government to protect our men and women in
uniform? Because they really are impacted severely.
Ms. Swanson. Madam Chair, I think a number of things can be
done. One would be to ban the use of PFAS firefighting foam for
training exercises. I mean, it really is a perversity that much
of the contamination occurred not by actually fighting fires
but by training how to fight fires. I think Congress can limit
the ability of these chemicals to be used in training
exercises, for example, and then as quickly as possible
phaseout the chemicals altogether.
Certainly classifying these substances as a hazardous
substance would help because the Department of Defense has been
slow to come to the cleanup table, and if it were called a
hazardous substance, that would certainly help and eliminate
the Department of Defense's ability to say we have no
obligation to do that.
I think listing these chemicals under the Toxic Release
Inventory is important as well. That helps all communities so
that if there is a release of these chemicals, you know, the
public knows about it, and I think that would be something that
could be helpful.
And then I think as well, just helping with the sampling, I
mean, this is an expensive effort. I just saw, I think, in
Massachusetts an announcement that the Governor was
appropriating some money for testing and it was millions of
dollars, and this is something that all communities are
grappling with. Some communities are probably better able to
pay for that than others, but that goes beyond the military but
could certainly help as well if testing were funded. It could
be something Congress could do.
Ms. Wasserman Schultz. Thank you.
Ms. Swanson. Thank you.
Ms. Wasserman Schultz. Mr. Bilott, anything to add?
Mr. Bilott. Nothing to add.
Ms. Wasserman Schultz. Okay. Thank you. And without
objection, the Navy report that I referenced will be entered as
a part of the record.And the panel is dismissed with the thanks
of the committee, and the committee stands in recess subject to
the call of the chair.
[Recess.]
Mr. Rouda.
[Presiding.] Without objection, the committee will
reconvene, and further without objection, the gentleman,
Representative Kildee, is authorized to participate in today's
hearing. Glad to have you here.
Before we start with the witnesses, I did want to make a
few comments. This is a unique hearing, and I want to say a few
words before we start with our next panel, which I will
introduce shortly. We have with us today representatives from
three corporations, the 3M Company, DuPont, and Chemours, and I
believe this is the first time these companies have testified
before Congress on the issue of PFAS chemicals. I would like to
welcome our panel and thank them for being here.
We just heard from Lori Swanson and Rob Bilott and how the
cases they litigated against 3M and DuPont, respectively,
relied on a long historical record that showed both companies
knew PFAS chemicals, specifically PFOA and PFOS, were toxic for
decades, and yet continued to manufacture these chemicals and
carelessly discharged them into our air, our water, and our
soil. As a result, Americans unwittingly drank, ate, and
breathed toxic, man-made chemicals for decades, chemicals that
can lead to liver disease, thyroid disease, kidney disease,
cancer, and more. I am hammering home this point because PFAS
contamination is an issue that is just now starting to get the
attention it deserves and companies are only recently starting
to pay for what they have done.
As I have mentioned, the companies represented before us
today are American institutions. They have made products
Americans have been eager to buy, and they have helped create
many of the conveniences of modern life. But that does not make
them exempt from basic ethical standards of conduct. Part of
why American capitalism has survived and thrived for as long as
it has is because companies have historically treated both
their workers and the larger American society responsibly and
fairly, in addition to turning a profit.
A company is not just a CEO or a head of PR but the
hundreds and thousands of people all working to serve a
specific purpose. The relationship between companies and the
American people is interdependent. Companies make high quality
products that Americans decide to purchase and each makes the
other better off. And importantly, each trusts the other
implicitly to participate in the marketplace in good faith.
So when that covenant is broken, when the American people
learn that companies have obscured and suppressed evidence and
the chemicals they use and manufacture are toxic, it is a
seismic event. I mean it, because it shapes the foundation of
democratic capitalism. And that is why we are here today, not
just to try and help gain some semblance of justice for the
affected people who lived in contaminated communities, but also
to ensure companies are held accountable for what can only be
described as violating the trust of the American people.
I certainly recognize that our panel here today represents
companies that have in some cases undergone a lot of changes,
including, but not limited to, corporate restructuring and
changes in management over the past several decades.
Chemours didn't even exist until 2015 when it was spun off
from DuPont. But our subcommittee doesn't accept that these
changes in corporate structure let the current incarnation of
the company off the hook. A company is tied to its past,
morally responsible for its past, and must answer for its past,
no matter what changes have occurred from point A to point B,
in the same way a Nation must contend with and be responsible
for actions taken decades ago, even though there have been
changes in government and leadership since then.
This is Congress, the people's body, not a courtroom, and
the American people recognize that companies don't just
disappear into thin air because a few people in a boardroom
somewhere decided that a merger and a few spin-offs might
improve the company's bottom line.
So I hope we don't spend this hearing trying to ping-pong
responsibility back and forth between two companies or debating
whether or not the DuPont that exists today is the same DuPont
that dumped PFAS into the water.
It also does not work to simply deny the science linking
PFAS to serious health affects in Americans, and try to leave
Americans who were poisoned up to their own devices to clean up
your mess.
So I hope that we can all start from a common baseline, and
that is the scientific consensus that PFAS chemicals and
especially the long-chain chemicals like PFOA and PFAS are
harmful to human health. Let's not get sucked into the rabbit
hole of more research needs to be done, because, you know what,
that excuse can be and has been used to justify inaction, and
the American people are smart enough to see that excuse for
what it is.
It is 2019, and if these chemicals are killing people,
let's stop using them and let's get them out of our
environment. I call on each company here today to come to the
table, work with Congress and the EPA to address this national
emergency. The lives of each and every American depend on it.
So with that, I would like to swear the witnesses in. Thank
you for rising. Do you swear or affirm to tell the truth, the
whole truth, and nothing but the truth so help you God?
Thank you. Please sit down. The record shows that the
witnesses answered in the affirmative.
We have three witnesses here. We have Daryl Roberts, chief
operating and engineering officer with DuPont; Denise
Rutherford, senior vice president of corporate affairs for 3M
Company; Paul Kirsch, president of fluoroproducts, The Chemours
Company.
And with that, we will move to you, Ms. Rutherford, to
start with your oral testimony for five minutes. Please note
that the microphones are very sensitive. Make sure you turn it
on when you're asked a question or when you're presenting. The
floor is yours. Thank you.
STATEMENT OF DENISE R. RUTHERFORD, SENIOR VICE PRESIDENT OF
CORPORATE AFFAIRS, THE 3M COMPANY
Ms. Rutherford. Chairman Rouda, Ranking Member Comer, and
distinguished members of the subcommittee, thank you for the
opportunity to appear before you today. My name is Denise
Rutherford, and I am the senior vice president of corporate
affairs at 3M, reporting directly to our chairman and CEO. In
this role, my responsibilities include sustainability
initiatives, environmental stewardship, and public policy.
I joined 3M as a senior research chemist in 1989 after
obtaining my Ph.D. in chemistry at Colorado State University,
and I've been a 3Mer for nearly 30 years. We are a company of
scientists and engineers who are committed to applying science
to help solve some of the world's biggest challenges.
Our core mission is to create products that are essential
to improving people's lives, and the innovations produced by
3Mers have benefited millions. These innovative products have--
include countless examples that are vital to everyday life,
from materials in smartphones, low-emission vehicles,
airplanes, and renewable energy, to our products like EKG
electrodes, worker safety products, and familiar products like
Scotch tape and Post-it notes.
In all our work, we are guided by a deep commitment to
people, to science, and to the quality and safety of our
products. This commitment extends to the topic that I'm here to
testify about today--industry's use of certain per-and
polyfluoroalkyl substances, or PFAS, and the state of
scientific knowledge about their effects on people and the
environment.
While PFAS is a very small fraction of 3M's overall
business, we take our stewardship responsibility extremely
seriously. At 3M, we have spent decades studying PFAS
compounds, and I'm grateful for the opportunity to share what
we've learned with the subcommittee and to listen to the
subcommittee's concerns on this important topic.
I am proud that 3M has had a--long standing--commitment to
environmental stewardship. That commitment extends to our
industry-leading, decades-long effort to improve technologies
and scientific understanding related to PFAS and includes our
decision to voluntarily phaseout production of PFOS and PFOA.
We were an industry leader in this respect and since our
decision to phaseout these compounds almost 20 years ago,
others in the industry eventually followed suit.
As a result, the most recent CDC testing shows that levels
of PFOS and PFOA in humans have declined by more than 70
percent. Seventy percent. This shows that progress is possible,
and we are headed in the right direction. We are committed to
continuing down that path and working with Congress and
regulators to develop a collaborative, science-based approach
to concerns about PFAS. In my written testimony I outlined five
key principles of our proposed path forward.
First is our commitment to ongoing remediation at sites
where we produced or disposed of PFAS. We believe this is an
important responsibility as a manufacturer and as a member of
the communities where we live and work.
Second is our commitment to ensure appropriate disposal of
firefighting foams known as AFFF. 3M's producing and selling
AFFF more than a decade ago. We will continue to work with our
former customers to ensure that unused 3M firefighting foam is
properly handled, and when appropriate we will take that
product back from those former customers.
Third is the need for nationwide science-based regulation.
We support EPA's PFAS action plan and Congress's efforts to
expedite timelines for the EPA to decide whether to set
nationwide drinking water standards.
Fourth, we propose establishing a clearing house for
sharing best practices on detection, measurement, and
remediation.
Finally, we call for a coordinated research into PFAS. We
believe that a respected, established, and independent
scientific body should be called upon to conduct a
comprehensive review of the existing science on PFAS, inform
the public of the findings, and set an agenda for continued
research.
If we come together, if all relevant stakeholders can come
together, we can develop a path forward. We commit to working
with Congress and concerned parties. As an active, responsible
participant in the dialog and to continuing to drive science-
based progress through appropriate actions.
Thank you for the opportunity to present this testimony. We
are looking forward to working with the subcommittee.
Mr. Rouda. Thank you, Ms. Rutherford.
Mr. Kirsch, five minutes for your opening statement.
STATEMENT OF PAUL KIRSCH, PRESIDENT OF FLUOROPRODUCTS, THE
CHEMOURS COMPANY
Mr. Kirsch. Thank you Chairman Rouda, Ranking Member Comer,
and members of the subcommittee for inviting me today to
testify on behalf of The Chemours Company.
My name is Paul Kirsch, and I'm the president of the
fluoroproducts business at Chemours, my role since I joined the
company in June 2016. I also serve as the executive sponsor for
the Chemours corporate responsibility commitments.
Like you and others who have come before this subcommittee,
I want to leave my children and grandchildren a cleaner, better
world. I don't merely empathize with public concerns over the
presence of PFAS in drinking water and the broader environment,
I share it. The public is rightly concerned over drinking water
quality, and Chemours, like all companies, must do its part.
Let me assure you, our entire team takes very seriously the
obligation to manage PFAS compounds and our manufacturing
processes in a responsible way and ensure they are safe for
their intended use.
I have been asked to provide some background regarding the
formation of Chemours and the details of its spin-off from
DuPont. Chemours was established on July 1, 2015, as an
independent, publicly traded company. From day one, we faced
serious challenges given how DuPont unilaterally designed the
spin-off, including a deliberate disproportionate assignment of
two-thirds of DuPont's environmental liabilities, 90 percent of
its active litigation, as well as an obligation to indemnify
DuPont for all assigned environmental liabilities should any
regulatory, public, or private plaintiffs seek to hold DuPont
accountable.
And if that wasn't enough, DuPont mandated a $4 billion
payment from Chemours in the form of a dividend. To our
knowledge, there has been no other spin-off like this in terms
of debt, as well as the indemnification provisions which have
no cap on time or money.
DuPont designed the separation of Chemours to create a
company where it could dump its liabilities to protect itself
from environmental cleanup and related responsibilities. From
my written testimony, you can clearly see that despite the
financial condition DuPont left us in at the time of the spin-
off, and the legacy issues we inherited, Chemours moved quickly
and with a sense of urgency to transform the company and take
action against these--to address these historical issues.
At Chemours we live up to our commitments with actions, not
just words. The $200 million investment we have made in our
Fayetteville, North Carolina facility, is just an example of
that. From this investment, we are creating a best-in-class
emissions control facility that can serve as a model for other
chemical manufacturing facilities around the globe. This
facility took tens of thousands of hours to design and will
reduce air and wastewater emissions of all PFAS by 99 percent
or greater by the end of this year.
The commitment to reduce air and wastewater emissions of
all PFAS by 99 percent or greater is not just for our
Fayetteville facility but for all of our sites. It's part of
our ten ambitious corporate responsibility commitments that we
announced a year ago. These commitments are both impactful and
measurable.
Besides the PFAS emission goal, a first in the chemical
manufacturing industry, these commitments also include
environmental goals for greenhouse gases and landfill
intensity. While Chemours has only existed as an independent
company for four years, we operate with a mature understanding
that economic progress and environmental protection are not
contradictory. They can and they must go together.
The products we make enable critical components used in the
medical, aerospace, automotive, semiconductor, communications,
and energy industries. For example, a major product produced at
our Fayetteville site not only enables renewable energy
storage, but it would be critical in enabling the hydrogen
economy with the next generation of fuel cells for the
automotive market.
And the types of commitments we have made enable us to
manufacture our products in ways that meet the expectation of a
world that demands more. We believe collaboration and
transparency are critical to better understanding this issue
and addressing public concern. We support the Federal
legislative efforts currently under way and their goals to
develop a safe, regulatory framework for PFAS compounds using a
science-based approach.
Chemours provided input to the Senate Environment and
Public Works Committee on the PFAS provisions in the Senate
NDAA bill, and we support the measures that resulted from that
process in the Senate bill as passed.
Chemours also supports EPA's process to determine whether
legacy, long-chain PFAS chemicals should be designated as
hazardous substances under the Superfund law. However, we do
understand Congress may move on this issue legislatively and
would welcome the opportunity to engage with Members should
this be the case.
In closing, we can't change the actions or decisions taken
by others in the past which continue to impact us today. We can
only control the decisions in front of us. We believe that our
record, even in our earliest days as a new company demonstrates
our commitment to being a different kind of chemistry company,
one dedicated to taking a leadership role in environmental
stewardship.
Thank you again for the opportunity to be here today. I
look forward to your questions.
Mr. Rouda. Thank you, Mr. Kirsch.
Mr. Roberts, the floor is yours for five minutes of opening
testimony.
STATEMENT OF DARYL ROBERTS, CHIEF OPERATIONS & ENGINEERING
OFFICER, DuPont DE NEMOURS, INC.
Mr. Roberts. Thank you, Mr. Chairman, Ranking Member Comer,
and members of the subcommittee.
My name is Daryl Roberts, and I am the chief operations and
engineering officer for DuPont. I attended Howard University on
the ROTC scholarship and earned a degree in chemical
engineering. I served as a commissioned Army Reserve officer
for eight years, during which time I started my career at
Eastman Kodak and earned a master's in occupational health and
safety from the University of Rochester, and an MBA from
Rochester Institute of Technology. I then worked in health and
safety roles in senior leadership for Arkema, a diversified
chemicals company.
Just over a year ago I joined DuPont because I was and
still am excited about the opportunity to work for a mission-
driven company that is focused on making the planet a better
place for my daughter's generation and beyond.
The new DuPont appreciates this opportunity to address the
subcommittee's questions about PFAS. We're pleased to be here
today to endorse specific legislative proposals and
congressional efforts to protect public health and the
environment.
Let me first explain why I refer to my company as the new
DuPont. E.I. du Pont de Nemours and Company, historically known
as DuPont, has evolved throughout the course of its history,
often adding and removing business lines. For example, in 2004,
the fibers business became a separate company called Invista.
And in 2013, the coatings business became a separate company
called Axalta. In 2015, the performance chemicals business, a
long-held business within the DuPont family, became a separate
company called Chemours.
Chemours took the fluoroproducts technologies, operations,
sites, customers, technical expertise, and executive leadership
in the formation of its new company. Their CEO ran the business
line. Their executives made decisions about the business line
for many, many years, and their plants made the products we are
talking about today.
Most recently, historical DuPont merged with the Dow
Company and then split into three separate, independent
companies--Dow, Corteva, and the new DuPont, which I represent.
With respect to Chemours, which has become a very
profitable, free-standing business, I would say no one wants to
hear two companies argue about litigation. This is not about
money here today. They want to hear about how we are going to
work with Congress on legislation, which is what the new DuPont
wants to do.
The new DuPont is a specialty products company dedicated to
solving some of the world's most pressing challenges, including
those identified in United Nations sustainable development
goals. For example, to address the world's food shortages we
have developed technologies to increase food shelf life. To
address greenhouse gas emissions, we have developed materials
to lightweight cars and planes. And we can all agree that our
first responders deserve the very best protective equipment, so
we continue to make the best-in-class performance fibers for
flame-resistant materials and body armor. We do all of this by
employing more than 14,000 Americans across 28 states.
The focus of today's hearing is PFAS. The new DuPont does
not manufacture PFAS. Like many other companies today, we use
some PFAS materials. However, our use is extremely limited.
Nevertheless, we recognize these are important issues, and
that's why we support legislative proposals addressing PFAS.
They are: Requiring EPA to set a national primary drinking
water regulation for PFAS within two years; requiring toxic
release inventory reporting on certain PFASes including PFOA
and PFOS; requiring EPA to set pretreatment and affluent
standards for PFAS by 2022; and requiring EPA to list PFOA and
PFOS as hazardous substances within one year under CERCLA. We
encourage Congress to enact these proposals as part of the
National Defense Authorization Act.
While Congress considers this legislation we're moving
forward with our own commitments. As this subcommittee
recognized in their prior hearing, the vast majority of PFAS
contamination is caused by firefighting foams. We do not
manufacture or sell firefighting foams and have never done so.
However, like countless other companies, we purchase foams for
protection of our facilities. We are committed to ending all
use of PFAS firefighting foams at our facilities by the end of
2021.
We have also reaffirmed our commitment to not make, buy, or
use long-chain PFAS materials. We will eliminate by the end of
this year our limited use of long-chain PFAS in a recently
integrated operation which is the only instance where we use it
today. And we're immediately working to eliminate it.
We will provide free access to our product steward
software. We will also grant free licenses to others to what--
that want to use our PFAS remediation, using our water-
treatment technologies, which we'll make available for free,
and we will provide research funding for PFAS remediation. And,
of course, we'll continue to fulfill our commitment to
remediate our sites.
We look forward to today's hearing and how we can work
together to further our shared goals of sustainability,
innovation, and responsible product stewardship.
Mr. Rouda. Thank you, Mr. Roberts.
The chair now recognizes Representative Tlaib for five
minutes of questions.
Ms. Tlaib. Thank you, Mr. Chairman. As we discussed in the
earlier subcommittee previous kind of hearings, we've also
discussed DuPont's own scientific research that demonstrated
links between exposure of PFAS and a variety of very serious
health concerns.
So, Mr. Roberts, I wanted to start by asking about DuPont's
current PFAS-related responsibilities. Is it your opinion that
since the 2005--is it Chemours spin-off--new DuPont is no
longer involved in development and marketing PFAS chemicals?
Mr. Roberts. Congresswoman, that is correct.
Ms. Tlaib. So regardless of all the money DuPont made over
the decades with PFAS chemicals, is it your opinion that new--I
can't stand that you guys call it----
Mr. Roberts. New DuPont.
Ms. Tlaib [continuing]. DuPont, which is right now
capitalized with those profits, is not liable for the unpaid
cost of cleaning up contamination and compensating for the
human injuries that DuPont caused?
Mr. Roberts. Congresswoman, what we're accountable for is
to represent and to ensure that we cleanup sites which we own
and operate. So we are----
Ms. Tlaib. So even though you contaminated other sites, you
don't want to pay for that?
Mr. Roberts. Congresswoman, I would----
Ms. Tlaib. How about injuries, people dying?
Mr. Roberts. Congresswoman----
Ms. Tlaib. Medical costs?
Mr. Roberts. Yes, if I may? Congresswoman, by all means,
the sites that we owned and operate, we're fully committed to
continue working to remediate.
Ms. Tlaib. No. It's lawyer talk when you say owned and
operate. I'm talking about when you contaminate other
properties, you walk away. You're not going to clean those up?
Mr. Roberts. Congresswoman, we did not walk away from those
sites. I will be very clear in saying that our performance
chemicals division of DuPont, which was renamed as Chemours, is
still operating those sites.
Ms. Tlaib. Okay.
Mr. Roberts. So the same individuals that were operating
those sites, that were making decisions on those sites, that
were--it was extracting profit from those sites and are still
extracting profit from those sites, as I read in the written
testimony from Chemours, are fully committed to cleaning them
up. So----
Ms. Tlaib. So in spite of growing scientific consensus
within the company that PFOA was toxic and was contaminating
local environments, DuPont purposely hid the research from
affected communities and government regulators. Glen Evers, a
former DuPont research scientist testified before this
committee, subcommittee, about DuPont's effort to suppress this
research on the toxicity of PFAS chemicals and DuPont's effort
to limit Mr. Evers' opportunity to discuss his research, as
well as retaliation against him for discussing his work with
the EPA.
Mr. Roberts, are you aware of these efforts to suppress
DuPont's own employee's research concerning the company's
development, use, and the health risk of PFAS chemicals?
Mr. Roberts. Congresswoman, I can tell you that I'm not
aware of that as I was not present at that time. What I can
tell you is that the company that I work for is fully committed
to working----
Ms. Tlaib. Sure.
Mr. Roberts [continuing]. in a way where we're
transparent----
Ms. Tlaib. Does DuPont----
Mr. Roberts [continuing]. where we work with our
communities in a way where they understand what we do. We
understand our requirement to ensure----
Ms. Tlaib. So you're not aware of that. But is DuPont, the
original manufacturer of Teflon, in any way responsible for
shielding critical information from the public?
Mr. Roberts. Congressman, no company should shield critical
information from the public. The company that I work for is
completely focused on making sure that when we have
information, that we communicate it, that we work and that our
product stewardship efforts are critical in what we do every
day, that the communities in which we operate, that we share
information, that we work with our regulators to establish the
right regulation. That's why we're here today----
Ms. Tlaib. I understand.
Mr. Roberts [continuing]. to completely support
legislation----
Ms. Tlaib. Well, I'm here because I represent 650,000
people that are being harmed by PFAS exposure, and we're trying
to get to the truth here and trying to bring it forward, not
talk about who owns what or whatever. We're trying to figure
out who is responsible, right?
So more recently, in 2009 DuPont received approval from the
Environmental Protection Agency, EPA, to start making GenX
commercially as a replacement for PFOA, which persists
indefinitely in the environment and is linked to cancer and
other serious illnesses.
The agreement passed to Chemours in 2015 when DuPont formed
the company from business units. That included the
manufacturing of GenX at the--I think it's Fayetteville--works
plant in North Carolina. Mr. Roberts, is this a depiction
accurate? Is it correct that DuPont's GenX manufacturing passed
to Chemours in 2015?
Mr. Roberts. Congresswoman, it is correct that the Chemours
company owns and operates the facility which is in
Fayetteville. That's correct.
Ms. Tlaib. Okay. Mr. Kirsch, so, is it also accurate to
stay that it is new DuPont's position, or whatever, that only
Chemours is now responsible for what was once DuPont's GenX
manufacturing operations?
Mr. Kirsch. I believe, Congresswoman, that's what's written
in the spin-off document, yes.
Ms. Tlaib. In our earlier subcommittee hearing, we heard
from Emily Donovan, a North Carolina resident, living near Cape
Fear River, which is dealing with PFAS contamination, including
PFOA, PFOS, and GenX chemicals. Ms. Donovan expressed concerns
that have emerged in her local community related to that
exposure and these emerging PFAS chemicals in links to cancers,
immune disorders, and so forth. Dr. DeWitt even described GenX
chemicals as quite toxic and not safe.
So, Mr. Roberts, the people in North Carolina who live
this, live by this plant, are very sick, and DuPont played a
role in poisoning them. So in my opinion, I think it means that
DuPont needs to help Chemours fix that crisis. And so will you
commit today to working with Chemours to clean up the water
works plant in North Carolina?
Mr. Roberts. Congresswoman, we're here today to commit to
clean up the sites that we own and operate. Chemours is fully
capable of cleaning up the sites that it owns, operates. It
continues to drive profits to its shareholders by operating.
They're fully--as we've heard from them, from their CEO, from
their leadership, they're in great financial position. There's
no reason that they would require our help to clean up their
sites.
Ms. Tlaib. Thank you, Mr. Chairman.
Mr. Rouda. Thank you.
The chair now recognizes Representative Gibbs.
Mr. Gibbs. Thank you, Chairman.
Ms. Rutherford, I think I heard you say in your oral
testimony that 3M has ceased producing PFOS and PFOA. Is that
correct?
Ms. Rutherford. Yes, Congressman, that's correct.
Mr. Gibbs. How long ago was that?
Ms. Rutherford. Congressman, we announced that phase-out in
May of the year 2000, and we completed the phase-out within
just a couple of years after that, for those two compounds--
PFOA and PFOS.
Mr. Gibbs. Did you do that based on your research, or were
you forced to do that?
Ms. Rutherford. No, we did this voluntarily, Congressman.
Thank you for that question. We discovered in the late 1990's
as our testing capabilities improved, we were able to find
these materials in the environment in places that we didn't
expect to find them and at concentrations, really low
concentrations. But as we moved forward, we saw that these did
bioaccumulate, meaning that they would buildup over time with
continued exposure, for these two particular materials. We
voluntarily then took the action to phaseout--we worked closely
with the EPA, the Clinton EPA at that time, to develop that
exit plan and to communicate our rationale for doing so. We did
this without any information, any awareness. There is still no
cause-and-effect relationship for any adverse human----
Mr. Gibbs. Okay. Thank you. I guess for all three of you--I
mentioned this in the first panel--there's 5,000 known
substances that are under this classification of PFAS, and are
all these chemicals the same structure? Is there some--my
understanding, there's some that testing would be tough, and
I'd just like to hear your reaction about, should we handle
this as a class, or should we figure out which ones might be
harmful to the environment and human health or--you see where
I'm going here?
Mr. Roberts. Congressman, we don't believe all these
chemicals are the same. That's why we support legislation to
list PFOA and PFOS, and only those two, as hazardous substances
under CERCLA. That's further than the other companies here are
willing to go today, but that's what we believe is correct.
What we know about those chemicals is that they're
biopersistent. That's enough to know that there's a clear
concern for those chemicals within society at this point in
time. And we feel for that reason that they should be
regulated.
On the larger class, we believe it's appropriate to have
the EPA continue to gain information for us to drive science-
based regulation once we have additional data on the larger
class of chemicals.
They can't all be looked at the same, but I think we know
enough about those which are called C8s or extremely
biopersistent, to say that that's an appropriate action at this
point in time.
Mr. Gibbs. Now, with all those 5,000 different compounds,
how has the interaction between the companies and the EPA, how
has that interaction worked to develop the science-based and
get the real facts of what's going on, what compounds might be
harmful and what might not be? Anybody can answer, all three of
you, whoever wants to.
Ms. Rutherford. Congressman, I'd be happy to address that
question. As we worked with the EPA over many, many years and
many administrations, we have engaged on a scientist-to-
scientist basis, and that work has continued to share the
studies we have, the body of evidence in the public domain, as
well as the work conducted by our own EPA to do risk
assessments as part of the process for setting a nationwide,
science-based standard. That work has continued.
We appreciate and support the new action plan to do that in
an expedited manner. We believe our country is best served to
continue to allow the EPA to exercise that process and not to
proceed with a hazardous designation under CERCLA unless it is
decided by the EPA through their normal process.
Mr. Gibbs. Okay. Go ahead, Mr. Kirsch.
Mr. Kirsch. Congressman, we agree that the class of the
5,000 substances that represent PFAS are not all the same. They
vary in their uses from the pharmaceutical industry, through
aviation, as I mentioned earlier, and automotive. So regulating
them as an entire class, we believe, would be a mistake.
To the question about how we work with different regulatory
bodies, we've spent time--or we are spending time, even in the
present, with different congressional bodies, both in the House
and the Senate, as well with the EPA and with the state of
North Carolina as a result of the efforts that we put in place
there.
Mr. Gibbs. Okay. Well, I think, like I said earlier, we
need to make sure that we're protecting the environment and
human health, but at the same token, make sure we're not
throwing the baby out with the bath water, and I don't think a
lot of people realize that there's this many thousands of
compounds under this general classification.
So we have to be careful how we handle that, Mr. Chairman,
and I think that's a prudent point because a lot of those
compounds are actually, I think, beneficial, and we need to
figure out the ones that aren't. That's where the science comes
in. I know somebody made a comment about science is an excuse,
and I don't think that's true. I think we need to get the facts
and do what's right for everybody. So I yield back. Thank you.
Mr. Rouda. Thank you. The chair now recognizes
Representative Kildee. You're up.
Mr. Kildee. First of all, thank you, Mr. Chairman, for
allowing me to participate in this hearing and thank you
especially for your leadership on this question and for holding
what has been, I think, a very informative series of hearings.
I'm not going to be redundant by asking some of the same
questions. I'd like to make a bit of a statement, but I want to
clarify something before I go forward.
Mr. Roberts, could you reiterate what you said about what
compounds should, in your opinion, the opinion of your company,
should be regulated and under CERCLA?
Mr. Roberts. Sure. Fluorosity compounds of PFOA and PFOS,
which are the two C8 chemistries which are considered long-
chain. They are the chemistries which we recognize as being
highly biopersistent, meaning they have half lives that can be
greater than a year. Because of that connection to
biopersistence, that's the reason why we believe that those are
the chemicals that should be considered for CERCLA.
Mr. Kildee. I thought that's what I understood you to say,
and I guess I'm a little bit puzzled. I think you mentioned,
Mr. Roberts, that Chemours has adequate financial resources to
deal with any financial liability for cleanup or for any
liability that might emanate out of health concerns as a result
of these chemical contaminants. Mr. Kirsch, is it your position
that Chemours was provided with adequate financial resources as
a part of the spin-off to deal with what obviously would be a
pretty significant cost to deal with cleanup and other
liability issues?
Mr. Kirsch. Thank you for the question, Congressman. The
answer would be a clear no, and I think the amended complaint
that you all received has a couple of interesting examples--and
I will mention one, and it gets back to the North Carolina
situation. The maximum liability that DuPont estimated for
North Carolina in the spin-off was $2.09 million. And as I
mentioned in my oral remarks, that cleanup effort and stopping
the emissions in that facility will cost us well north of $200
million.
Mr. Kildee. So this is the concern that many of us have, is
that we hear from one witness who has off-loaded their
liability, that they think that the chemicals in question
should be regulated under CERCLA, but that the company that
does have liability has not been given adequate resources to
deal with that obligation. And listening to the witness
representing 3M, you want to get credit for the decision to no
longer produce these dangerous chemicals voluntarily, but in
the same breath, want us to believe that there's no science
that says that these chemicals are dangerous at all. So if
you're responsible for the creation and the promulgation of
these chemicals in the environment, you can off-load the
obligation to somebody else who doesn't have enough resource,
and if you create these chemicals that then contaminate people
and affect their lives, you can take credit for the fact that
you're taking it out of commerce and no longer putting it into
the environment, but on the same token say that there's nothing
saying this is dangerous. This is ridiculous. This is
ridiculous. We have a huge problem in this country. The people
I represent, for example, in the town of Oscoda, Michigan, who
hosted an Air Force Base, the Wurtsmith Air Force Base, had
their groundwater contaminated, have had their way of life
affected. It's a part of Michigan. It's right on the shore of
Lake Huron. It's a beautiful part of our state, where the
culture is one of hunting and fishing, where now you can't hunt
the animals because the groundwater has contaminated them. You
can't eat the fish that you catch because they're too dangerous
to consume. And we have companies that have benefited and made
millions and billions of dollars by selling these products into
commerce, who now want to point the finger at somebody else or
say, well, we're not going to produce these chemicals anymore,
but believe me, there's no science that says they're safe. I
take issue with that. There's plenty of science. There's plenty
of science out there that demonstrates these are harmful
chemicals and dangerous for human consumption. Otherwise, you
wouldn't have taken them off the market in the first place.
Mr. Chairman, thank you for holding this hearing. This has
been quite elucidating, and I think what we're hearing today, I
think, makes the case that we can't sit and wait for voluntary
action, even though I think obviously we would appreciate
action. Congress has to act. It's the only way we're going to
get to this problem and at a scale equal to the problem. Thank
you very much.
Mr. Rouda. Thank you.
The chair now recognizes Representative Gosar for five
minutes of questioning.
Mr. Gosar. Thank you, Mr. Chair.
Ms. Rutherford, what role does science play in EPA's
chemical regulatory process, and what type of information does
EPA consider as part of this process?
Ms. Rutherford. Yes. Thank you for the question,
Congressman. The EPA has a very rigorous, scientific process
that is fundamental to its decisions. As I understand it, our
scientists work closely with those scientists on a variety of
materials. You can appreciate for a company that has 50,000
different products, we are engaged with regulators. We take our
responsibility for our products and the safety of those
products very, very seriously. And as we have engaged with
them, the EPA has been able to develop processes that set
appropriate regulations and nationwide science-based standards
for us over many years.
Mr. Gosar. So is there legal or other possible
ramifications if the EPA does not base its regulatory actions
on sound science?
Ms. Rutherford. Congressman, that's an interesting
question. I'm not a legislator or a member of the EPA. Our
concern would be that our actions speak for ourselves. We've
been engaged with our communities in remediation at our own
manufacturing facilities and dealing with these issues over
years. It has resulted in remediation, improving water quality
in our communities. The blood levels in the Americans has
dropped by more than 70 percent. Actions speak louder than
words. We're concerned that should legislative action result in
a lot more conversation and arguments, it would prevent us from
taking action in the communities and improving water quality.
Mr. Gosar. So I guess my question is, as, you know, it goes
about sound science, is, 3M's protocol, were they instrumental
in actually constructing some of the protocols that are found
at the EPA?
Ms. Rutherford. Congressman, I wouldn't be so bold as to
say we're that instrumental, but we have been engaged in
testing these materials over many years. It was our
scientific--our scientists--excuse me--who were instrumental in
developing some of the analytical techniques that allow us now
to detect these materials down to the parts-per-trillion level.
And so as we are engaged in testing and in active remediation
around our own sites, we are able to detect these materials,
and that is a technique that was supported by 3M and many
others in the industry, quite honestly, to enable the EPA to
further its--the interest of the Americans addressing water
quality.
Mr. Gosar. So what you're telling me is, the technology has
changed to evaluate the chemistry, the evaluation, to finding
bioaccumulation? That's evolved, hasn't it? I mean, once upon a
time, science said that the earth was flat. Is it flat?
Ms. Rutherford. Congressman, we all know that's not the
case. The world is round. And, you know, our approach in
advancing the science has evolved over time. When we first
produced these materials, we conducted certain rig tests that
were required by the EPA. Additional tests are now required. We
are absolutely committed to that degree of compliance, both the
standards and our understanding of these materials. Our ability
to detect today is far beyond what it was 20 to 30 years ago.
Mr. Gosar. Well, most of the time, rules and regulatory
state actually comes from reaction, not being proactive. So how
do you look at this aspect in being proactive? I mean, you
know, it's kind of hard to see into the future, but once again,
science gives us some predicated outcomes. You know,
particularly a scientific method that if I perform certain
processes, I get a result, and I turn them back over to you.
You do the same processes and get the same result. That's how
science has evolved to today. So how have you looked at your
process that's been proactive versus reactive?
Ms. Rutherford. Congressman, that's an interesting
perspective, and what I can say is that 3M conducts our own
research. We also support, by terms of grants to universities,
for them to conduct research in an unrestricted way. So that
research continues to expand the body of knowledge. Those are
peer-reviewed journals. That helps to advance the understanding
that we all have of these particular materials in the
environment.
We have been studying this for many, many years, our own
work force, scientific studies. We see there are associations
in these studies. We see a lot of inconsistencies in those
data, and the data simply don't show any cause-and-effect
relationships at historical levels of these materials in the
environment, either the older materials or the newer materials,
but yet we continue to advance the science so that we can truly
understand the situation.
Mr. Gosar. One indulgence real quick.
Are there other industries that your metrics have been
beneficial to, other than the chemistry, like DuPont and 3M?
Ms. Rutherford. Sorry. Could you----
Mr. Gosar. Are there other industries that have benefited
from your quantitative evaluations in a proactive manner?
Ms. Rutherford. Certainly. We're very active in several
industries where precise measurements are required. For
instance, the advances in electronics have been enabled by some
of our materials going into electronic devices--our
transportation, low-emission vehicles, aerospace. All of those
industries benefit by the dedication of all of our scientific
companies here in the U.S.
Mr. Gosar. Mining as well, right?
Ms. Rutherford. Absolutely.
Mr. Gosar. Thank you.
Mr. Rouda. Thank you. The chair now recognizes
Representative Ocasio-Cortez.
Ms. Ocasio-Cortez. Thank you, Mr. Chair. Thank you for
holding this hearing and ensuring that we don't let this go
until we get some real answers on this issue. This committee
has heard stories of families whose babies have had their
brains damaged for their entire lives by PFAS chemicals, women
who have been rendered infertile for their entire lives, stage
4 cancer, people whose families have been torn apart by lupus
and diabetes, and have lost many family members to this
disease. Ms. Rutherford, I want to spend some time here
discussing some of 3M's current tactics when it comes to
accepting responsibility for PFAS--or not accepting
responsibility for PFAS contamination. Are you aware of 3M's
membership to an organization entitled Responsible Science
Policy Coalition?
Ms. Rutherford. Congresswoman, we are members of many trade
associations, and that is one of those.
Ms. Ocasio-Cortez. How much money does 3M give to this
coalition?
Ms. Rutherford. I'm not aware of that actual number,
Congresswoman.
Ms. Ocasio-Cortez. Okay. Are you aware of any other
chemical companies that are members of the Responsible Science
Policy Coalition?
Ms. Rutherford. Again, I will reiterate, we're members of
many trade associations. We do that in order to advance our
perspective--share our perspective, and to share our science
and----
Ms. Ocasio-Cortez. Thank you.
Mr. Chairman, I would like to enter into the record a
presentation by the Responsible Science Policy Coalition dated
July 24th, 2018, which lists 3M as a key member.
Mr. Rouda. Without objection, so moved.
Ms. Ocasio-Cortez. Thank you very much. In the lobbying
materials by the coalition, it states, and I quote, the weight
of current scientific evidence does not show that PFOS or PFOA
cause adverse health effects in humans at current rates of
exposure. Ms. Rutherford, do you agree with this statement?
Ms. Rutherford. Congresswoman, I absolutely agree with that
statement.
Ms. Ocasio-Cortez. This statement goes against 3M's own
scientists who for decades have been studying these chemicals
and terming them, quote, toxic. For instance, in 1999, Richard
Purdy, one of 3M's own scientists and environmental specialists
resigned his position in protest calling PFAS, quote, the most
insidious pollutant since PCB. Additionally, this
administration's agency for toxic substances and disease
registry released a toxicology profile of PFAS chemicals. In
the profile the agency states, quote, the available
epidemiology study suggests associations between perfluorical
exposure and several health outcomes. They then go on to list a
myriad of serious health outcomes, including increased risk of
thyroid disease, liver damage, increased risk of decreased
fertility, and decreased antibody response to vaccines.
Even during the state of Minnesota's lawsuit against 3M, 3M
claimed that there were no proven negative health effects of
PFAS exposure on human health. Mr. Rutherford--or Ms.
Rutherford, are you aware of the efforts made by 3M in the past
to conceal the risks of PFAS for more than 60 years?
Ms. Rutherford. Congresswoman, I cannot--I am not familiar
with that. That goes against everything I know about my company
as a scientist over these past 30 years. We are committed to
advancing the science and to sharing information to the public
domain.
Ms. Ocasio-Cortez. And if that's the case, why is 3M taking
a position of denying the scientific findings of its own
scientists? A large part of the scientific community and the
current administration by joining organizations that are
spreading misinformation about PFAS.
Ms. Rutherford. Congresswoman, respectfully, I disagree
with that characterization. We have a team of epidemiologists
and toxicologists who do report to me. I've spent hours and
hours with them, going through these studies. There is--there
are a lot of inconsistencies in the data. We accept this that
there are associations which are like leads, places that we
should continue to look, and we are, in fact, doing that. But
when we look at that evidence, there's no cause and effect for
adverse human health effects at the levels that we are exposed
to as a general population.
Ms. Ocasio-Cortez. Right. So it may not be causal, but it's
very associative, I see here. Has 3M or any agent of 3M taken
meetings in the last year with lawmakers and told them or their
staff that there's no negative health effects of PFAS on human
health?
Ms. Rutherford. Congresswoman, we have a very active team
of representatives here working with policymakers to share
information. We are very transparent about that. We do that, we
report and register all of our representatives----
Ms. Ocasio-Cortez. But is that information--has 3M or an
agent of 3M told lawmakers that there is no negative health
effects to PFAS?
Ms. Rutherford. We have shared with legislators,
policymakers, Congresswoman, the same statement that you have
repeated back to me, that the weight of scientific evidence
shows no adverse human health effects at current or former
levels.
Ms. Ocasio-Cortez. So 3M is telling lawmakers to not be
concerned about this?
Ms. Rutherford. No. We are saying that we should be
concerned. We do request additional studies, but what we can
say is, we've been studying our own work force for more than 40
years. These are people who had occupational exposure at much
higher levels than the general population. We do not see,
looking at the scientific evidence of our own work force,
adverse human health effects.
Ms. Ocasio-Cortez. And has this point ever been
communicated to senior officials of the Trump administration?
Ms. Rutherford. I am not aware of that, Congresswoman. We
have been working with regulators and policymakers.
Ms. Ocasio-Cortez. Thank you very much.
Mr. Rouda. Thank you.
The chair now recognizes Representative Keller for five
minutes of questions.
Mr. Keller. Thank you, Mr. Chair.
I'm glad to be here today to learn more about the effects
of PFAS. And it's all our concern that we have a healthy
community, healthy water, and a healthy environment.
Dr. Rutherford, you know, I've been listening to the
exchange going back and forth about PFAS and potential harms.
And I heard you say, and I want to make sure I understood it
correctly, that in your work force, you hadn't seen that the
exposure of the employees of 3M had had the negative impact on
their health. Is that correct?
Ms. Rutherford. Congressman, that is indeed correct. And
thank you for the question. We've been, as all chemical
manufacturers will do, monitoring our own work force over many,
many years dating back into early operations both in Minnesota
and in Alabama and other facilities. We see no adverse human
health effects associated with exposures to which they were
exposed. And, again, that's many times higher than general
population.
Mr. Keller. Now, this wouldn't be just your view or 3M's
view. Do others believe this to be the case as well, such as
any government agencies?
Ms. Rutherford. Congressman, many governments have studied
this issue. It's a very complex issue, and it's worthy of
further study. Other governments, such as Australia Department
of Health, Canada's Ministry of Health, have made similar
conclusions that the data are inconsistent, yet that the data
available today show no conclusive evidence of cause-and-effect
relationships creating adverse human health.
Mr. Keller. And, you know, just some fluoropolymers, you
know, compounds of PFAS, they're used in a wide variety of
things, even medical devices and those kind of things. Is that
correct?
Ms. Rutherford. Congressman, that's correct. These
fluoropolymers are used in many very important applications,
such as aircraft engines, low emission vehicles, renewable
energy, just to name a few, electronics.
Mr. Keller. But in the case of medical devices, you know,
that would be something that would be covered under the Food
and Drug Administration if there were some negative impacts. We
would certainly think that a branch of the U.S. Government such
as the Food and Drug Administration would be concerned if these
pose that kind of risk and using them for medical devices.
Would that be an accurate assumption to follow?
Ms. Rutherford. Yes, Congressman, that would be an accurate
assumption. These are used in medical devices. Some of my
fellow witnesses have spoken to that, that these are key
components in a variety of devices all around us every day to
enable performance.
Mr. Keller. Okay. Again, I just want to make sure that when
we look at anything as Congress, that we follow the science and
the actual science. And I'll say this, not the political
science of trying to advance an agenda but the actual science
of how this impacts the lives of Americans and making sure
that--while we want to make sure everybody's safe, we have the
tools and we have the ability to have those tools made
available, whether it's for low emissions to help our
environment, whether it's for medical devices to help us look
for ways that we can be healthier or prevent diseases. We need
to make sure that we let the science do it and not as Congress
tell the scientists how to do their jobs.
So any other government agencies, because it's not just the
Food and Drug Administration. We also have a government agency
called OSHA, and they deal with safety of Americans and people
that work in America.
So, again, I would just encourage the other members of this
committee to make sure that we let the actual science dictate
what we do and not the political science.
Thank you.
Mr. Rouda. Thank you.
The chair now recognizes Representative Hill for five
minutes of questioning.
Ms. Hill. Thank you.
I appreciate my colleague's commitment to science. And I
would urge us to ensure that those who are funding the science
are indeed objective, as we know oil companies funded the
science that denied climate change for many, many years.
I have to say I'm very glad that these three companies
decided to show up here today. The country, our groundwater,
and our people have been poisoned by chemicals made, used, and
improperly disposed of by the companies in this room. The
question is who is going to pay for the injuries and the
cleanup. These companies or the taxpayers?
And here's one thing that really bothers me. DuPont is
trying to use corporation law to ensure that they are not on
the hook for these costs. DuPont spun off its chemical business
in 2015 into a new independent company, Chemours. And according
to the complaint Chemours recently--and I'm sorry if I'm not
pronouncing this right. My French is a little rusty--recently
filed against DuPont. DuPont then saddled the new company with
liability costs that were dramatically underestimated at the
time the spinoff was finalized. Next, DuPont merged with
another company, Dow Chemical, and then spun off a company that
they refer to as New DuPont.
The sole purpose of these corporate restructuring seems to
be the creation of a legal fiction that someone else is
responsible for all the documented harms that DuPont
perpetrated dumping PFAS chemicals into landfills and
waterways, suppressing the science showing these chemicals were
toxic, poisoning the drinking water of millions of Americans.
This strains credulity, and that is putting it mildly.
DuPont has, in the past, accepted liability for discharging
PFAS chemicals into the environment which led to serious
problems, including birth defects, liver and thyroid and kidney
disease, and cancer. Now, a few years have passed, and there's
been a spinoff, a merger, and then other spinoffs.
So, Mr. Roberts, I recognize that you're new with the
company, but who is now responsible for this contamination if
not DuPont?
Mr. Roberts. Congresswoman, to go through your question,
the DuPont company has changed forms many times over the last
217 years. The last 10 years is not new and was not constructed
in some way to avoid liability around the PFAS issue.
The removal of the fibers business to INVISTA; the spinoff
of the Axalta business, which is related to our coatings, the
Performance Chemicals business, which is related to the
fluorochemicals line of business, which is now called Chemours;
the creation of the merger with Dow and then the separation,
was about this company now reemerging as a company that's
focused on sustainability.
Ms. Hill. I mean, that's fine. I understand restructuring.
I mean, I ran an organization. I know how restructures work,
and that's fine. But who ultimately is responsible if not
DuPont?
Chemours didn't exist when this was happening. I mean, they
came into existence in 2015. So who takes accountability? And
if corporate law loopholes allow us to put our hands up like
this, then the only people who are responsible are the American
taxpayers, because the cleanup has to happen. This to me is a
nonoption. But who pays for it?
And as far as I'm concerned, the company that was doing
this in the first place should be held accountable. But if that
company doesn't exist through corporate gymnastics, then who
does pay that bill?
Mr. Roberts. Okay. Congresswoman, I fully agree with you.
And in my opening statement, I stated, first, we're fully
committed to remediating the sites that we own. I also heard,
as we went through the opening statements, that Chemours has
very clearly stated that it's committed to doing remediation on
the site that it now owns.
Ms. Hill. Well, let's talk about that.
Mr. Roberts. So I don't believe that either company is
saying that there's not full commitment to making sure the
sites that have been owned and operated either currently by the
company that's called DuPont or the division of DuPont, which
was Performance Chemicals, which is still operating, which is
financially viable in every way, shape, and form----
Ms. Hill. I don't mean to cut you off, but I only have a
minute left.
According to the Chemours' complaint against DuPont filed
this year, there's issues with the estimates of cost cleanups
near Cape Fear, North Carolina, one of DuPont's legacy sites.
The estimate was that it would be approximately $2 million in
cleanup. Chemours later learned that the actual cost of the
cleanup would be somewhere around 200 million, and that's a
huge difference in terms of estimates. And then--I'll jump
really quickly. I guess what it boils down to is that if
Chemours doesn't have the money to pay the victims for all
their injuries and to clean up all the contamination, then what
happens? Is it DuPont's argument that taxpayers should pay and
not DuPont? Who's responsible?
Mr. Roberts. Congresswoman, we don't believe the taxpayers
should pay. What I would say, when we hear the statement that
Chemours then later found out, is that the individuals that
were running the sites, the individuals that were developing
the products, the individuals that ran this business related to
the sites that were fully aware of the financials of the
business, fully aware of the liabilities and profits and
understood what it was taking with it, are the same individuals
that sit and run Chemours today.
Ms. Hill. But there's the $2 million estimate versus the
$200 million estimate. That doesn't quite track. And I'm out of
time. But I would--maybe you can respond to that in writing
after the fact.
Mr. Roberts. We would be glad to.
Ms. Hill. Yielding back.
Thank you.
Mr. Rouda. Thank you.
The chair now recognizes Representative Comer for five
minutes of questioning.
Mr. Comer. Thank you.
Dr. Rutherford, I think it would be good for everyone to
know how 3M got into the PFAS business to begin with. I know in
your testimony you mention relationships with the Navy and with
firefighting foam. But can you briefly tell us how that
relationship began?
Ms. Rutherford. Yes, Congressman. Thank you for the
question. We were involved in the development very early on of
fluorochemical surfactants. And that was research that we had
engaged in early days. We also had a patent that was purchased
from a university that gave us technology in that area as well.
And then after the aircraft carrier fire in--of the
Forrestal, where our military personnel lost many, many lives,
many of their lives were lost, the Navy put out a request for
an improved firefighting system for ships. 3M was one of the
companies engaged in that research that resulted in the Navy
winning a patent for the--and writing the first specifications
for the firefighting foams. And 3M was one of the suppliers in
the early development and then through several--many, many
years.
Mr. Comer. Okay. I'm going to jump around here.
Mr. Roberts, in your statement, you said that DuPont will
no longer use any long-chain PFAS in, quote, recently
integrated operations. Can you explain a little bit more what
that exactly means?
Mr. Roberts. That's correct. Congressman, we recently, as
part of the spinoff from the Dow Company, acquired a business
that, as part of it, had one product that used a long-chain
material. As with the Dow changes--and it will continue to do
in the future. Any time that we acquire something, if there's
anything that's long-chain, that's included within that
portfolio, then we will immediately look to eliminate it,
because we're going to stand by our commitment not to use those
materials, but--which might be even more important is, not only
are we fully committed to not participating in long-chain
chemistry, but our biggest footprint around those materials is
actually around our firefighting foams.
So our commitment is that we will, by the end of 2021, is
to completely stop the use of PFAS-related firefighting foams
at our sites. We have already stopped using PFAS firefighting
foams for training. Any time that a PFAS-related firefighting
foam is used to prevent or in the mitigation of a real event,
we collect that material so that it doesn't go to soil--or to a
water body. And we believe that the industry is now ready. And
we have been working with companies both in the Americas and in
Europe on a generation of firefighting foams that we're
comfortable for our uses can be used to replace PFAS chemicals,
even those that are not long-chain.
So our biggest footprint is around our firefighting foams.
We're fully committed to removing that footprint by, not only
getting out of long-chain, but also getting out of all PFAS-
related firefighting foams across all of our sites worldwide.
Mr. Comer. And I've stated this in a previous hearing that
we had on this subject, but the Kentucky firefighters' union
came to my office and were very concerned about that. They
obviously are concerned about their safety, as I'm sure every
Member of Congress is, and that was an important component. So
that's good to hear.
They were concerned about their safety, because the PFAS
helps put out fires quicker than----
Mr. Roberts. Correct.
Mr. Comer [continuing]. than just normal water.
Mr. Roberts. But I agree that--normal water. But I think
what we see now is a new generation of foams, which though I'm
sure will have their own issue, are not biopersistent. So they
are made up of alcohols or proteins which don't have that
issue. And we now have a generation we think are just as
effective as PFAS-related materials. So we are working with
those companies. As we are focused on sustainability, we think
we can develop a roadmap that other companies can then follow
once we work with these companies to develop this line of
chemistry. We'll remove this issue that we've heard across the
country is really firefighting foams, so we're focused on
addressing that issue.
Mr. Comer. Good.
Mr. Kirsch, I'm curious, are the people running Chemours'
business today the same people who ran it when it was a part of
DuPont?
Mr. Kirsch. No, they're not, Congressman. I think that was
a slight misrepresentation. So on my staff, I run the
fluoroproducts business, as I mentioned in my opening
statement. My staff consists of 12 folks, three of which have
any--anything to do with the previous DuPont fluoropolymers
business. The rest are either new to the company or had no
previous experience in fluoropolymers.
To the best of my understanding, the way that the spin
document was created, the current Chemours leadership, anyone
that was there at DuPont at the time, was not involved in the
creation of that document. So to suggest that there was
information and the ability to dictate those terms I think is
just false and, hence, the complaint.
Mr. Roberts. If I may.
Mr. Comer. Yes.
Mr. Roberts. The gentleman who was the executive vice
president of the fluorochemicals business and had been so since
2008 is now the CEO of Chemours. So I just want to be clear
here that so we can truly accept the areas where we're going to
focus that we can focus on remediating the sites that we own
and that Chemours does the same. But I don't want to really sit
here and go back and forth, because it doesn't make sense. But
I don't want to be in a shell game.
When the head of the business is now the CEO, it's clear
that there's ownership. And an individual who was a part of
those discussions who the scientists work for and is currently
running Chemours, it makes it very difficult to say we don't
know anything about it before 2015.
Mr. Kirsch. I'm sorry. I need to comment on this.
Yes, Mr. Vergnano is the CEO of Chemours. Mr. Vergnano was
part of the DuPont company. I find it interesting that any
request I've ever made to address sustainability issues or
issues of remediation, which we are taking significant action
and we made significant commitments, ambitious commitments one
year ago, Mr. Vergnano has approved every single one of those.
I'm having trouble bridging this.
Mr. Comer. Thank you. I yield back.
Mr. Rouda. The chair now recognizes Representative Sarbanes
for five minutes of questioning.
Mr. Sarbanes. Thank you, Mr. Chairman. Thanks for convening
this hearing on an important topic.
So that last exchange was pretty enlightening, I think. The
fact that you have two major corporations now pointing fingers
at each other, and that's exactly what was just happening, it
shows a couple things. There's something wrong with these
chemicals. That's an acknowledgment implicitly in that finger-
pointing that we just saw. And, second, both companies know
that there's a significant amount of legal liability and
accompanying financial liability associated with these
chemicals and how they were handled. And everybody's trying to
get in front of that, I can see.
I want to come back for a moment, Ms. Rutherford, to your
testimony previously about the responsible science policy
coalition, which I understand 3M is a member of or has helped
to fund. And they have concluded, among various studies they've
done, quote, the weight of scientific evidence does not show
that PFOA or PFOS caused health effects in humans. And you were
asked about that, whether you agree with that or you don't
agree with that, and I think you said you do agree with it.
Ms. Rutherford. Congressman, that's correct. I do agree
with that statement.
Mr. Sarbanes. Talk to me about that. How can you agree with
this statement after all of the testimony that's come forward
and the litigation and otherwise that there are no health
effects in humans from PFOA or PFOS? I just want to get into
your head for a second, because on its face, it seems to me
that goes against the weight of the evidence, testimony,
documents that have been presented for years when it comes to
the impact of those chemicals.
Ms. Rutherford. Congressman, if I may.
Mr. Sarbanes. Yes, go ahead.
Ms. Rutherford. Again, it is the complete understanding of
how the testing is done, the analytics, the approach to
understanding this. I do appreciate that links and associations
are indicated in those scientific studies. However, every study
I've read, and I've read many, many of these studies, calls for
additional work, because there are a lot of inconsistencies in
the data. Establishing a human health impact is a very complex
thing. And we----
Mr. Sarbanes. You know that back in, I guess, 1981 there
was a memorandum inside 3M saying that, as a precautionary
measure, approximately 25 women of childbearing potential have
received job reassignments at the 3M Decatur plant so they will
not be exposed to a type of flurorchemical that can cause birth
defects in rats.
So I guess are you saying, well, it causes birth defects in
rats, but that's not conclusive as to human effects?
Nevertheless, there was a reassignment of 25 childbearing
women. Are you aware of that testimony and document?
Ms. Rutherford. Congressman, I am indeed aware of that
testimony and that study. What I'd like to share with you is I
felt that was a measure of very strong responsibility on our
part. There was a study conducted in which we observed some of
these birth defects. What we found also, though, is that this
was an inaccurate study. The way the fetus was dissected was
not repeatable. We shared these information with the EPA.
And the way we discovered that, Congressman, is that it
showed up in the control group. The same issue that was found
in the exposed population of the animals showed up in the
control group with no exposure. So we were--that showed----
Mr. Sarbanes. So on the one hand--I mean, I get your point
here. You're trying to put a context around that particular
information. And that's fair, to a point. But there's a lot of
other information and evidence that has come forward, which
really belies the statement and the conclusion that was reached
by this responsible science policy coalition which, as far as I
can tell, is just a whitewash operation. I mean, it's sort of,
you know, everybody's going to be okay coalition. But I don't
think that there's good science behind that, from what we've
seen.
The fact of the matter is the chemical industry has a
tremendous amount of power, influence, resources. And they have
deployed that for decades against the interests of the average
person out there. They've done it with lobbyists. They've done
it with campaign contributions. They've done it by buying
studies that then masquerade as science. And this continues to
go on. We have a responsibility here to push back against that,
and we're not going to give up until we've done that.
I appreciate your coming here today, but this is the
beginning of a continuing inquiry into the harmful effects of
these chemicals.
And with that, I yield back.
Mr. Rouda. Thank you.
The chair now recognizes Representative Wasserman Schultz
for five minutes of questioning.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
Last year, the Union of Concerned Scientists released a
report detailing PFAS contamination at 131 military facilities
across the United States. At 90 percent of these sites, PFAS
concentration was 10 times higher than CDC's Agency for Toxic
Substances and Disease Registry, ATSDR, risk levels, which
itself is much lower than the EPA's current health advisory.
Two-thirds of these sites were at least 100 times the ATSDR
risk level.
I'd like the panel to consider this: At Patrick Air Force
Base in Brevard County, Florida, PFAS contamination was found
to be 4,338,000 parts per trillion. That's the level that was
detected. That is 390,909 times the risk level.
Many servicemembers have developed cases of Hodgkin's
lymphoma and other cancers. These chemicals were used at about
400 U.S. military installations, as we have discussed here
today.
Ms. Rutherford, what are 3M's plans for compensating
servicemembers and veterans that were exposed to these
chemicals, chemicals that your company had determined as
harmful to human health?
Ms. Rutherford. Thank you for the question, Congresswoman.
As we transformed our own product portfolio and phased out of
the chemicals that are part of AFFF, we discontinued that
product. We have, nevertheless, continued to work with the
Department of Defense to understand the safe use of these
materials and the remediation. The remediation needs around
these bases do need to be addressed.
Ms. Wasserman Schultz. Remediation is not what I'm asking
you about. What I'm asking you about is what plans do you have
to compensate servicemembers and veterans that were exposed to
these chemicals that you were aware were harmful to human
health?
Ms. Rutherford. Again, Congresswoman, the studies we have
do not indicate at the levels of exposure in the environment in
the past or today that adverse human health effects exist. We
are, however, continuing our studies, and we will work
proactively with scientific bodies. It's not only me,
Congresswoman. It is every--a lot of other government agencies,
our own ATSDR, Australia, Canada, Germany, the weight of
scientific evidence is there. We do agree additional study is
required.
Ms. Wasserman Schultz. I'm sorry, that's just not--that
doesn't conform with what information I know that we've been
given about 3M's awareness of the harmful effects of these
chemicals.
You began working with the Navy on developing your
firefighting foam in the sixties. At what point did you convey
the research that you had done and the knowledge of the
products harmful effects to DOD? My understanding is that you
do and were and withheld information about its harmful effects,
and I want to know if you ever advised DOD that it should stop
the use of the foam based on that awareness.
Ms. Rutherford. Congresswoman, as we became aware of the
potential of bioaccumulation of some of the materials of these
foams, that communication did indeed happen. So we've been
proactive in sharing that information, the risk of
bioaccumulation. And that's why we phased out of those two
particular materials at the time more than 12 years ago.
Ms. Wasserman Schultz. Okay. These chemicals have been
significantly contaminating our servicemen and servicewomen,
yet DuPont worried, in its 2009 SEC annual filings, that
approximately--and this is a quote--$1 billion of 2009 revenues
could be affected by any such regulation or prohibition of
PFOA, while the company stated in the same report, DuPont
believes that PFOA exposure does not pose a health risk to the
general public.
Did DuPont care more about its bottom line than about our
men and women serving in the Armed Forces? And why have your
companies, all of your companies been fighting against
additional regulation of PFAS chemicals even though our
servicemembers who have come into contact with firefighting
foam or tainted groundwater are suffering from illness?
Mr. Roberts. Congresswoman, first of all, as I stated in my
opening, we're not here standing in the way of regulation. We
support very clearly the line items that are included as part
of the NDAA. So we're here to be cooperative. We're here to
support. I think the things that this Congress is talking about
in understanding what type of legislation would really help to
drive this--the situation in the right direction.
So to start there, clearly requiring the EPA to set a
national primary drinking water regulation for PFAS under the
Safe Drinking Water Act within two years is something that
we're here to support, as well as other line items on the NDAA.
Ms. Wasserman Schultz. I'm glad that you have taken this
position now. But that was clearly not your position
previously. Previously, your company did oppose regulation of
these chemicals and maintained that you would lose a billion
dollars of revenue in 2009 if there was any such regulation,
and kept the information about its harmful effects from the
public. Isn't that correct?
Mr. Roberts. I don't know that to be the case,
Congresswoman.
Ms. Wasserman Schultz. Well, I'm reading to you from words
that were put out by your own company in a report.
Mr. Roberts. Okay. What I can tell you is what we believe
today. What I can tell you is that we're here to support, in a
proactive way, legislation that we think will drive this
situation in the right direction.
Ms. Wasserman Schultz. Does DuPont have plans to compensate
servicemembers who have been harmed by exposure to these
chemicals?
Mr. Roberts. Congresswoman, the DuPont company that I
represent, and I believe what I also read in the Chemours
statement, was that AFFF, or foams related to this issue, were
not materials that were made by DuPont. They're not now, and I
don't believe that was the case in the past at all. But I would
refer that to the gentleman from Chemours to respond to as
well.
Ms. Wasserman Schultz. Mr. Chairman, I know my time is
expired. But if the gentleman from Chemours could respond, that
would be helpful.
Mr. Kirsch. Yes. Thank you, Congresswoman.
Chemours has never manufactured, sold, or formulated
firefighting foams. I believe the issue--question is
specifically around PFOS and PFOA. Neither one of those
Chemours has ever used. So at this point, I'm not sure what
else I could possibly add to the conversation.
Ms. Wasserman Schultz. Are any of your companies that were
responsible for using any of these chemicals that firefighters
and military servicemembers were exposed to planning any type
of compensation to harmed victims? That's a question for all
three of you.
Mr. Roberts. At this point, the DuPont company is focused
on cleaning up and remediating the sites which we operate,
that's our focus, as well as reducing the amount of
firefighting foam that we use in our sites. But that's the
limit of where we're focused at this time.
Ms. Wasserman Schultz. So no?
Mr. Roberts. We are focused on what we--what's within our
control.
Ms. Wasserman Schultz. No. Yes or no? Yes or no?
Mr. Roberts. We'll continue to focus on what's within our
control.
Ms. Wasserman Schultz. That's not a yes-or-no answer. Yes
or no, are you planning, at any point, at compensating people
who have been harmed by your company's chemicals?
Mr. Roberts. Congresswoman, you're speaking specifically to
armed forces around the world----
Ms. Wasserman Schultz. I'm speaking specifically to any--to
this issue specifically.
Mr. Roberts. Yes. We are focused on working through----
Ms. Wasserman Schultz. Okay. The other two people, if you
could answer, please.
Mr. Kirsch. Yes.
Ms. Wasserman Schultz. The answer is no. Let the record
reflect that the gentleman essentially said, no, there are no
plans.
Mr. Kirsch. Again, we have not been involved in PFOA or
PFOS, which I think are the----
Ms. Wasserman Schultz. So your answer is also no?
Mr. Kirsch. Correct.
Ms. Rutherford. Congresswoman, we have been actively
engaged in our communities over many, many years conducting
remediation----
Ms. Wasserman Schultz. Yes or no? Are there any plans that
3M has to compensate victims who have been damaged by your
chemicals?
Ms. Rutherford. I will reiterate my statement,
Congresswoman, that our evidence does not indicate that anyone
was--adverse human health effects were caused by these foams.
Ms. Wasserman Schultz. That's not----
Ms. Rutherford. Nevertheless, we're actively engaged with
the DOD.
Ms. Wasserman Schultz. That's not actually accurate in
terms of the documents and the information that has been
provided to the committee and to the military. Thank you. I
yield back the balance of my time.
Mr. Rouda. Thank you. The chair now recognizes myself for a
line of questioning.
Let me start with Mr. Roberts. I thought your comment that
the spinout of Chemours had nothing to do with reducing the
liability of DuPont was patently false. We know that boards and
executive management teams often spend time trying to figure
out how to reduce liabilities. And I'm quite certain that
DuPont, with its in-house attorneys and experts, figured out
the best way to reduce the liability here was to spin it out to
Chemours.
And that leads me to you, Mr. Kirsch. How much money was
given to Chemours when it was started and spun out to address
these liabilities?
Mr. Kirsch. Mr. Chairman, I don't have the exact figure in
my head in terms of what the accrual would be. I mentioned
the--I mentioned the North Carolina case, the 2 million----
Mr. Rouda. I'm talking, when you were spun out, were you
given a basket of assets to address the studies that DuPont had
done to ascertain the potential liability they were going to
have? Were you given money to address it?
Mr. Kirsch. I'm not sure exactly how much money might have
been accrued, but there were maximum liabilities that were
estimated, and I believe an accrual was set forth for that.
Mr. Rouda. And, of course, the maximum liabilities have
shown to be extensively beyond that. I think you said at one
point it's a hundred times greater than what was anticipated.
Mr. Kirsch. That's correct.
Mr. Rouda. And, Ms. Rutherford, I'm deeply confused. You
said, and I want to make sure I understand this, no one has
been harmed by any PFAS chemicals that you're aware of?
Ms. Rutherford. Congressman, what I did say----
Mr. Rouda. That's a yes or no. Come on. I don't need a long
speech. Yes or no?
Ms. Rutherford. We have no definitive cause-and-effect
relationship for----
Mr. Rouda. Great. So your point is no one in America right
now, no one, has been a victim of any PFAS chemicals, all
5,000, including PFOA and PFOS. That is your position.
Ms. Rutherford. We state that the majority evidence does
not indicate that--that to be true, sir.
Mr. Rouda. Then why the hell do you care there's been a 70
percent reduction in PFAS levels if it doesn't affect anyone?
Ms. Rutherford. Because we know these are concerns of our
colleagues, the people in our communities, and all of us. We
all want to have confidence in our drinking----
Mr. Rouda. Damn right, because you guys have internal memos
that show that it impacts people, impacts your workers. You've
made changes in how you had those workers conduct their
activities. You have internal memos showing how devastating
these chemicals can be to certain individuals that become
exposed to it, yet you also stated earlier that you deny
knowing about those internal memos?
Ms. Rutherford. No, I don't believe so.
Mr. Rouda. I thought Representative Ocasio-Cortez asked you
what knowledge you had of coverup of information by 3M, and you
stated, I believe, to the effect that you've been completely
transparent and you're not aware of those situations. Is that
incorrect? You are aware of the memos?
Ms. Rutherford. I believe the conversation, Chairman----
Mr. Rouda. Let me ask the question. Are you aware of memos,
internal documentation at 3M showing clearly concerns about the
hazardous aspects of exposure to these chemicals both by
workers of 3M as well as the general public? Are you aware of
any documentation within 3M to that effect?
Ms. Rutherford. There are studies, Chairman, that indicate
there are effects at extremely high doses as a result of our
own scientific inquiry. That is a part of the evidence that we
have. At extremely high doses in respect to how we
commercialize our new products to ensure the safety----
Mr. Rouda. How do you define high doses? What would that
be? Parts per trillion of what?
Ms. Rutherford. Oh, no. This would be in parts per hundred.
So this is a very, very different order of magnitude. Many,
many thousands of times higher than what you would be exposed
to in the environment.
Mr. Rouda. I see. So what we've seen when witnesses
previously coming in here who have been exposed to those levels
who have significant health hazards, health outcomes, you would
suggest it has nothing to do with the class of PFAS chemicals.
It has something to do with some other item.
Mr. Roberts, I want to ask you. You stated earlier that you
would support PFOS and PFOA being covered by the Superfund. Is
that correct?
Mr. Roberts. That's correct.
Mr. Rouda. Mr. Kirsch, would you as well?
Mr. Kirsch. I'm not the expert on the two compounds or the
legislation or the--and the process. It sounds like the EPA has
enough information to make a decision.
Mr. Rouda. So your answer is no at this time?
Mr. Kirsch. I think the EPA has enough information to make
the decision, and I think that that's the decision they should
make. And I think if they don't, I'm assuming that you'll----
Mr. Rouda. Okay. Ms. Rutherford?
Ms. Rutherford. Yes, Chairman. We believe the EPA should be
allowed to use its process to make that decision.
Mr. Rouda. Mr. Roberts, if I understand things correctly,
there's 5,000 chemicals under the heading of PFAS. The long-
chain seem to be the ones that most people would agree are bad
for our health.
Besides PFOS and PFOA, of the other 5,000 chemicals under
the class of PFAS, how many of them are long-chain, roughly? In
other words, it's not just those two, correct?
Mr. Roberts. No, it's not just those two. If we think about
the chemicals which were identified under TRI, it was PFOA,
PFOS, and about 22 other companies that were considered in that
group that we talked about reporting under TRI. That's the
group that I think that we're talking about. That's why it's--
--
Mr. Rouda. Thank you. So you answered my next question.
So based on what we know with long-chain, all long-chain
compounds should fall under the Superfund, correct?
Mr. Roberts. That group would be acceptable. It's still a
very small subgroup. They're all--have that--the issue of being
biopersistent. So if it was just those two or slightly larger
group, you know, I think that's something that could be
determined by Congress.
Mr. Rouda. I've submitted legislation to support a trust
fund to finance an EPA administrative fee on PFAS manufacturers
designed to raise at least $2 billion per year sufficient to
cover 25 percent of what we know we need in operation and
maintenance costs associated with PFAS and predominantly PFOA
and PFOS.
Would any of you three support legislation along those
lines to hold manufacturers responsible for helping create a
trust fund to address these cleanups?
Mr. Roberts. Congressman, for today we focused on the
sections that were under the NDAA only because we knew that was
a current issue on the Hill. But we'd be more than happy to
followup with your office to understand more and have a
discussion on that. We'd be more than happy to have that
discussion.
Mr. Rouda. Mr. Kirsch?
Mr. Kirsch. Mr. Chairman, we're spending tremendous amounts
of money to virtually eliminate the emissions of PFAS from all
of our facilities, tremendous amounts of money. I guess I would
also be inclined to work together with your office to
understand better what this mechanism looked like.
Mr. Rouda. I also note that your lobbying efforts have also
increased by 123 percent. I assume that's in an effort to
address this issue in a way that is most satisfactory to
Chemours?
Mr. Kirsch. I honestly don't know what the lobbying budget
is for the company.
Mr. Rouda. Ms. Rutherford?
Ms. Rutherford. Yes, Chairman. We're very interested in
being involved in additional testing and remediation
discussions, and we'd be glad to work with your office to
understand exactly that intent.
Mr. Rouda. Well, I'd like to thank all of you for coming in
today. I know there's been some tough questions. And I'm a
little frustrated, because I do feel like there's a little bit
of round robin here and an unwillingness to fully embrace the
obligations that companies have to the trust of the American
public when it comes to addressing matters of our health and
our safety, yet I also see some potential light.
And I appreciate, Mr. Roberts, your commitment on behalf of
DuPont to see some of these chemicals under PFAS be brought
into the Superfund oversight.
And at this time, the chair would like to recognize
Representative Wasserman Schultz for additional questions.
Ms. Wasserman Schultz. Thank you, Mr. Chairman. I
appreciate it. Referring back to PFAS being one of the biggest
sources of contamination in the Department of Defense's use of
PFAS containing firefighting foam, the Department has resisted
cleaning up the contamination that it caused and argues that
PFAS has not yet been designated a hazardous substance under
the Superfund law. Making the Superfund designation would also
free up EPA funding and other resources to help cleanup
civilian sites critical to us addressing this remediation that
you're referring to.
Even former EPA Administrator Scott Pruitt said a year and
a half ago that EPA would designate some PFAS chemicals to be
hazardous substances under the Superfund law. But I know I
don't have the confidence that EPA is going to propose a rule
that takes that step, let alone finalize one.
So to the panel, and I would like a straight yes or no
answer, do you agree that legacy PFAS chemicals like PFOA and
PFOS should be designated as hazardous substances under the
Superfund law?
Ms. Rutherford?
Ms. Rutherford. Congresswoman, we do not believe that is
the case. The EPA should make----
Ms. Wasserman Schultz. So no? No?
Ms. Rutherford. At this time, based on the science, we--
we're not policymakers, ma'am. We cannot make that assessment
for the United States.
Ms. Wasserman Schultz. No. Yes or no?
Ms. Rutherford. No.
Ms. Wasserman Schultz. Okay. Thank you.
Mr. Kirsch. I'm not the expert.
Ms. Wasserman Schultz. I realize you're not the expert. Yes
or no, do you believe that PFAS chemicals like PFOA and PFOS
should be designated as hazardous substances under the
Superfund law?
Mr. Kirsch. I think the EPA has all the information they
need, based on what I've heard.
Ms. Wasserman Schultz. I'm not asking whether--that
question. I'm asking you if your company's position is that it
should be designated as a hazardous substance under the
Superfund law.
Mr. Kirsch. Congresswoman, I appreciate the line of
questioning, but with all due respect, that's as much as I can
answer.
Ms. Wasserman Schultz. So you won't answer the question?
You're refusing to answer what your company's position is----
Mr. Kirsch. I think the EPA----
Ms. Wasserman Schultz.--on whether or not----
Mr. Kirsch. Sorry.--the EPA has all the information they
need.
Ms. Wasserman Schultz. You're refusing to answer the
question. You will not answer yes or no on whether or not your
company believes that these chemicals should be designated as
hazardous substances under the Superfund law. You're refusing
to answer the question. Is that correct?
Mr. Kirsch. The answer would be no.
Ms. Wasserman Schultz. You don't think so?
Mr. Kirsch. I think the--again, the EPA has----
Ms. Wasserman Schultz. You don't think that designation
should be made?
Mr. Kirsch. The EPA has all the information that they need.
Ms. Wasserman Schultz. And so your answer is no. Is that
what you're saying? No?
Mr. Kirsch. I said the EPA has all the information they
need to----
Ms. Wasserman Schultz. So you're--are you refusing to
answer or are you saying no?
Mr. Kirsch. I think I did answer the question.
Ms. Wasserman Schultz. No, you didn't. Yes or no to my
question.
Mr. Kirsch. Again, the EPA has----
Ms. Wasserman Schultz. That's not yes or no. So essentially
you're refusing to answer.
Mr. Roberts?
Mr. Roberts. Congresswoman, for PFOA and PFOS, our answer
is yes.
Ms. Wasserman Schultz. Okay. Thank you very much.
During the subcommittee's July hearing on PFAS and
industrial contamination, Emily Donovan, who lives in a
community plagued by water laced with several PFAS chemicals
called on all PFAS chemicals to be designated as hazardous
under the Superfund law. And I agree with Ms. Donovan.
Mr. Chairman, I'd like to enter into the record a letter
that was signed by 162 House members asking the NDAA conference
to regulate all PFAS chemicals.
And to the panel, if you want this subcommittee, this
Congress, and the American public to believe that you are ready
to take your obligation to clean up these chemicals seriously,
this is your moment.
Do any of you agree--hopefully all of you agree--that all
PFAS should be designated as hazardous under the Superfund law?
So far, I've gotten a no and a refusal to answer and a yes,
so----
Mr. Roberts. Congresswoman, my yes was for PFOA and PFOS.
The biopersistent long-chains, I do not agree that that's the
right statement for the entire class of 6,000 chemicals.
Ms. Wasserman Schultz. Okay.
Mr. Roberts. So my answer was very specific to PFOA and
PFOS.
Ms. Wasserman Schultz. To those two chemicals.
Mr. Roberts. Correct.
Ms. Wasserman Schultz. Thank you.
To those of you that have disagreed or refused to answer,
you are playing a part in this national emergency. You have
sickened our first responders and our members of our military,
and I don't know how you sleep at night.
Thank you. I yield back the balance of my time.
Mr. Rouda. Thank you.
Without objection, all members will have five legislative
days within which to submit additional written questions for
the witnesses to the chair which will be forwarded to the
witnesses for their response. I ask our witnesses to please
respond as promptly as you are able.
This hearing is adjourned. Thank you.
[Whereupon, at 5:20 p.m., the subcommittee was adjourned.]
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