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PFAS Chemical Producers Under Criminal Investigation

It may sometimes look like alphabet soup when scientists begin writing about perfluorinated chemicals, historically abbreviated PFC. Interestingly, the abbreviation PFC refers to two similar, yet distinctly different chemicals: perfluorinated chemicals and perfluorocarbons.1

Perfluorinated chemicals include perfluorocarbons and other per- and polyfluoroalkyl substances, such as PFOA and PFOS. To reduce confusion, the EPA made the move to use “PFAS” to refer to per- and polyfluoroalkyl substances that describe chemicals in this group, including perfluorocarbons.

Perfluorocarbons (PFCs) are closely related to PFASs, but these persistent chemicals have different effects. The EPA describes PFCs as “among the most potent and longest-lasting type of greenhouse gases emitted by human activities; the chief impact of environmental concern is global climate change.”2

PFAS is a large group of chemical compounds, sometimes referred to as "The Teflon Chemicals"3 or "forever chemicals."4 These are the chemicals that make products water-, oil-, grease- and stain-resistant; they also are found in firefighting foam.

PFOS and PFOA are two PFAS chemicals that were voluntarily phased out by manufacturers DuPont and 3M — which also happens to sell fluoridated treatment products5 for teeth. A fluoride-awareness group, Fluoride Action Network (FAN) posted on their website that they began tracking these chemicals in 2000 “because of their use in several pesticides.”6

In the phase-out, the first PFOA was voluntarily removed by 3M under pressure from the EPA in 2002. DuPont agreed in 2005 to phase out PFOA by 2015.7

While they are no longer manufactured in the U.S., these are only two of many PFAS chemicals. On top of all this, the EPA reveals “phased out” doesn’t mean “not being used.”8 “There are some limited ongoing uses of PFOS (see 40 CFR §721.9582)” and “Existing stocks of PFOA might still be used and there might be PFOA in some imported articles,” the EPA says.

EPA Investigating PFAS-Related Pollution

Increasingly, scientific data have demonstrated the lethal effects PFAS chemicals have on human health and the environment. This may have been one of the motivating factors for the EPA to launch criminal inquiries into the forever chemicals.

The EPA PFAS Action Plan: Program Update9 of February 2020 reveals the "agency has multiple criminal investigations underway concerning PFAS-related pollution.” They write, "Since 2002, the agency has initiated 12 enforcement actions, including four since 2017." Earth & Water Law Group founder Brent Fewell is encouraged by the action, as noted in his comments to Bloomberg:10

“Multiple investigations clearly signals EPA is serious about understanding what the manufacturers knew about the chemicals’ toxicity and when they knew it. EPA is likely focused on whether the PFAS manufacturers knowingly failed to disclose to EPA the known risks of the chemical.

It’s not at all surprising that EPA has signaled a criminal investigation or even multiple investigations into PFAS given the heightened health concerns and public attention.”

But he also says less than half of the criminal cases the EPA investigates each year will be prosecuted. The chemicals were originally produced in the 1940s and scientists have been aware the chemicals could leach from packaging into food since the 1950s.11,12

When EPA administrator Andrew Wheeler spoke with Bloomberg Law, he said the agency was committed to addressing contamination but could not give details on an ongoing investigation. However, a 3M filing with the U.S. Securities and Exchange Commission for fiscal year 2019 revealed they were at least one company that had received a subpoena.13

“In December 2019, the Company received a grand jury subpoena from the U.S. Attorney’s Office for the Northern District of Alabama for documents related to, among other matters, the Company’s compliance with the 2009 TSCA consent order and unpermitted discharges to the Tennessee River.”

Clean Up Is Extensive and Expensive

Chemours is the company that emerged from the Dow Chemical and DuPont merger in 2015.14 The company was developed so Chemours would cover liabilities associated with cleanup of PFOA in the environment.

Not long after the company was created, they sought a legal remedy to limit their liability, claiming DuPont’s estimates were “spectacularly wrong.” Litigation and inquiries against both companies allege “fraudulent transfer” in the spinoff.15This also includes possible criminal investigation by:

“ … the U.S. Department of Justice, Consumer Protection Branch, and the United States Attorney’s Office for the Eastern District of Pennsylvania … regarding PFAS and food contact applications.”

The tangled web of lies and deceit began nearly 60 years ago, making it difficult to unwind in a court of law. However, after recognizing the damage these chemicals were wreaking on human and environmental health, it should have been apparent to manufacturers they could have developed safer alternatives while still enjoying prosperity.

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