When the Environmental Protection Agency settled on Dec. 6 a major enforcement action against DuPont Co., for failing to report possible health risks involving its chemicals, it wasn’t the first time. In 2005, the company also resolved EPA assertions that it hid the dangers of a toxic chemical, agreeing to pay a record civil penalty of more than $10 million.
At the time, EPA enforcers boasted that the settlement sent “a strong message” to companies about the hazards of keeping such secrets from regulators. This time, the EPA and the company settled for $3.3 million, and the EPA again is suggesting that companies will get the message.
Cynthia Giles, the assistant administrator who heads the agency’s enforcement office, said the latest settlement showed that “EPA is serious about making companies follow our nation’s laws and protecting public health.”
Despite its record, DuPont is among at least a dozen companies the Obama administration granted blanket exemptions from basic environmental oversight to allow them to pursue energy projects paid for by stimulus tax dollars. The companies all have histories of serious environmental violations, the Center for Public Integrity found.
For DuPont, that history just got a little longer. The EPA’s agreement stems from the firm’s failure to report possible health risks associated with a number of unnamed chemicals tested “for possible use as surface protection, masonry protection, water repellants, sealants, and paints,” the EPA said.
The agreement, signed by federal regulators on Dec. 6 and announced Dec. 21, resolves 57 toxic substances violations dating back before May 2006, when the chemical manufacturer notified EPA that it had failed to submit 176 chemical toxicity studies on rats, as required by law.
The agency determined that 57 of the studies detailed information that could pose “substantial risk of injury to health or the environment,” making them subject to reporting requirements under the Toxic Substances Control Act.
The Center’s November story described how the Obama administration awarded more than 179,000 exemptions known as “categorical exclusions” to stimulus projects funded by federal agencies, freeing those projects from normally required review under the National Environmental Policy Act, or NEPA.
The Energy Department — which has handed out NEPA exemptions to recipients with some of the nation’s worst environmental compliance records — has funded an $8.9 million project led by DuPont to create clean-burning biofuel from seaweed. Its stimulus grant nearly equals the record environmental fine the company paid in 2005 to settle claims that it hid the dangers of perfluorooctanoic acid, a chemical compound also known as C8 and used to make Teflon, from federal regulators for two decades.
The EPA, when announcing the 2005 settlement, indicated that the resulting penalty would change things at DuPont and other companies. “This settlement sends a strong message that companies are responsible for promptly informing EPA about risk information associated with their chemicals,” Granta Y. Nakayama, then an assistant administrator for EPA enforcement, said at the time. “This is the largest civil administrative penalty EPA has ever obtained under any environmental statute. Not by a little, by a lot.”
Today, Nakayama did not return a phone call and email to his law firm of Kirkland & Ellis, where he represents companies regulated by the EPA, sometimes in defense of enforcement actions.
In a statement, the EPA said DuPont notified the agency it had failed to submit chemical toxicity studies, and that the agency took action. "The agency believes that aggressive civil and criminal enforcement programs help ensure compliance with the nations environmental laws and act as a powerful deterrent, sending the message that violations of the laws that protect the environment and the health of communities will have serious consequences," the EPA said.
DuPont spokesman Daniel Turner acknowledged on Tuesday that the EPA’s 2005 case against the company paved the way for its latest action. During the 2005 enforcement case, EPA regulators learned that DuPont was following the wrong criteria for reporting chemical toxicity under the Toxic Substances Control law, thus keeping hundreds of toxicity studies from the agency. As a result, the company submitted the 176 toxicity studies the following year, 57 of which fell under legal guidelines for reporting.
“The settlement allows us to put this matter behind us and move forward,” Turner added.
Environmental advocates, meanwhile, viewed the settlement as business as usual for both regulators and the chemical giant. The company, they say, easily can write off as a relatively low cost of doing business such penalties and continue to violate the law.
Rick Abraham, an environmental consultant who helped the United Steelworkers union uncover high levels of the toxic chemical C8 in water supplies in a half dozen states where DuPont had plants, believes that the company is getting the wrong message from regulators: “Get caught and it will cost you something — but not enough to discourage the repeating of violations.”
Other companies are likely to be watching closely. “Rewarding violators like DuPont,” said Abraham, “will only encourage future violations.”