Q&A: Lawyer from ‘Dark Waters’ explains why industry should pay for its PFAS contamination

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(Image courtesy of Rob Bilott)

Rob Bilott, whose story was recently turned into the Hollywood movie “Dark Waters” starring Mark Ruffalo, has spent more than 20 years working on PFAS chemical legal cases. 

The 2019 film is about how he successfully sued DuPont for more than $671 million after it was found DuPont had knowingly dumped PFOA, a chemical it knew could be dangerous, about 150 miles southwest of Pittsburgh in Parkersburg, W.Va. A study found that PFOA was associated with several health problems including thyroid disease and kidney and testicular cancer.

PFAS chemical contamination has become a major environmental and health problem across the country, including in the Pittsburgh area. Before Thanksgiving, Bilott spoke at a Women for a Healthy Environment* virtual event and answered questions from PublicSource about his plans to address PFAS contamination going forward and who he thinks should be held responsible. The interview was edited and condensed for brevity and clarity.

Did anything change about how you’re able to do your work after the movie “Dark Waters” was released?

The contamination has been out there for 60 to 70 years, and people were still referring to these chemicals as "emerging contaminants.” What's starting to emerge is awareness now of the scope of the contamination. People are understanding the scope now and realizing it’s in the water all over the United States. 

And has that increased awareness changed how you’re able to do your work?

It has taken off since that New York Times Magazine article in 2016, and the United States EPA came out with its first drinking water guidelines just a couple months later. That led to the Department of Defense starting to sample outside military bases all across the country, where these chemicals had been used in firefighting foams

When they went out and started sampling, that started generating test results. Some new communities were told these chemicals were being found in their water. 

(Courtesy photo from Rob Bilott)

Then, when the documentary came out, "The Devil We Know,” in 2018, and then the movie "Dark Waters” last year and my book, "Exposure" as well. We’re starting to see the media report on it more extensively than in the past.

Does having more people aware make it easier to bring PFAS lawsuits?

My goal has been to get the information out. I view this as a public health threat, and it’s taken a long time to get this information out to the regulators and the scientific community. That’s the primary goal, so people can start minimizing their exposure. 

As that information has come out, we have been asked by governmental entities, different communities and individuals to help them as well.

We’re doing what we can to make sure those that are responsible, the companies that made this stuff who knew that if they put it out there it would get into the water and into people’s blood that those companies should be responsible for cleaning it up and for the damage it’s caused.

Given that there are so many of these chemicals out there from so many different sources — how likely are you to be able to identify which of these companies is responsible for how much of the damage?

I can’t really comment on the strategy for the case I am working on, but what I can tell you is the case we brought is focused on the raw PFAS chemicals in people’s blood, not any particular product those chemicals were used in. Those chemicals are found in the blood and are essentially fingerprints to the companies that produced them, not the products that they were then used in down the line.

Given that there is a very urgent and immediate threat to our health — the COVID-19 pandemic — has it been hard to continue to build momentum around a relatively slow-acting toxin?

I don’t see them as being unrelated. One of the problems scientists are concerned about is the impact of PFAS on our immune systems. PFAS has been linked with decreased immune system response and decreased effectiveness of vaccines. That’s incredibly troubling. So that’s something that hasn’t been widely reported or picked up on.

As the movie “Dark Waters” was being released (in late-November 2019), the pandemic hit and a lot of movie theaters shut down. And a lot of media focused on that and then the election. 

So it’s always difficult to raise awareness on an issue like this, particularly one that has been out there so long. It’s complicated, it involves science and law, and it’s been going on for decades and involves a mouthful of acronyms that are not always easy to understand. I think you’ve seen a lot of discussion referring to these as "forever chemicals" to avoid the confusing acronyms that most people don’t understand.

Your class action lawsuit is asking for funding to continue to study the health effects of PFAS. But there is already so much research out there. Do we need more studies?

If you look at the story that’s told in "Dark Waters" and in my book, it’s really focused on one of these PFAS. But there are hundreds, if not thousands, in the PFAS class. 

PFOA is the chemical that is the focus of the movies and the book. If you look at what had to happen there: All the human health studies that were done, including 69,000 people, which confirmed links with health effects, including cancer. It took 20 years to get information out about that one chemical. 

As that information came out about PFOA and regulatory agencies cracked down — it was banned. What happened in the meantime is the company started phasing out PFOA and switching to others. 

We started realizing there were all these other PFAS chemicals out there, including some that were used as replacements. And what we’re hearing from those that are making them is we don't have sufficient information on what these other chemicals are doing. Exposed people have the burden to show that these new chemicals are causing harm.

So that lawsuit that I filed in 2018 is seeking to bring a class action for the broad chemical group. Whatever additional studies are needed to move forward should be paid for by the companies that are putting this stuff out there.

There is a ton of information and science out there and a lot of scientists will tell you that we have more than enough information about the whole group of PFAS chemicals for regulators to move forward to set drinking water standards or guidelines to protect people. What I’m trying to deal with is the argument from the companies who say, “No, there isn’t enough data, the science isn’t settled.” 

My response is: If you are going to take that position, then you ought to be paying for whatever additional studies are necessary. If the companies are going to say we don’t have enough information, then they need to fund whatever else has to be done. 

We know there is contamination at two military bases neighboring Pittsburgh International Airport and likely a lot more at the airport itself. But we don’t know how far it has spread or how many drinking water wells in the area could be impacted. Who should be looking into this and paying for it?

It’s the companies who manufacture these chemicals who have responsibility. They put them out there knowing they would be used in firefighting foams and instructing people to spray them. 

There seems to be a bit of a battle going on across the country with the Department of Defense with military bases, since the chemicals are technically not regulated as hazardous substances. So the military has historically not been eager to start cleaning things up until there are official federal standards for the chemicals. 

So far, the focus has been on the larger municipal water supplies. Some of the bigger systems were sampled in 2013 and 2014, but there haven’t been comprehensive steps taken to look at smaller systems and private wells.

So what should someone do if they have a private well near the airport?

I can’t offer legal advice, but if they are interested in finding out if they have chemicals in their drinking water, that can be an expensive process. The lab costs are still very high. There are still a limited number of labs that can even do the tests. But there are some resources out there. Environmental groups are also trying to make information available about where PFAS has been found in water supplies to date.

You’re now speaking to law school students. What’s your message to them?

We are talking about something where our regulatory system has failed and our legislative system has failed. The only way to date that people were able to get clean water and any kind of relief from being injured by this stuff was to go through the court system. 

How did something like this happen here in the United States, and how is it that it continues to happen? One of the things I really try to explore in the book is the connection between failures in the regulatory system, the legislative process, the scientific world and our legal system. There are some real systemic issues there that created this problem.

Hopefully, if we understand better how we got here, someone will come up with a great idea for how we fix it.

Both Women for a Health Environment and PublicSource receive funding from The Heinz Endowments and The Pittsburgh Foundation.

Oliver Morrison is PublicSource’s environment and health reporter. He can be reached at oliver@publicsource.org or on Twitter @ORMorrison.

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