On Wednesday, Chemours will hold its Q4 Earnings Call as it faces increased scrutiny amid mounting liabilities and a bleak financial outlook. The viability of the company, which was spun off from DuPont in July 2015, continues to be tested as it attempts to manage billions of dollars’ worth of potential liabilities that were transferred to the highly leveraged company (for which DuPont is ultimately responsible should Chemours be unable to pay them itself).
Last month, less than nine months after Chemours issued $4 billion of new debt upon spinning off from DuPont, Moody’s placed Chemours’ rating on review for downgrade, which would place these securities in the speculative category subject to substantial default risk. Chemours’ share price is already down 80 percent from the time of the spinoff, reflecting the nature of the company’s financial viability.
As a result of extensive news coverage and Congressional hearings, we have seen the extensive damage suffered in Flint, MI when water is contaminated. It is imperative that DuPont and Chemours take action rather than trying to downplay the extent of the harm they’ve caused and to avoid further crippling the communities and citizens of the mid-Ohio Valley region.
Chemours’ leadership faces the following questions:
1. How is Chemours accruing for ballooning liabilities arising from future C-8 classes?
Chemours must address the potential additional liability associated with new evidence that C-8 contamination is far more extensive than previously identified. Last Friday, officials in Vienna, WV reported that the town’s drinking water is contaminated with C-8 at levels that the EPA recently said were higher than is safe to drink. Exposure to C-8, a chemical manufactured by Chemours’ parent company, DuPont, has been conclusively identified as a probable link to kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, high cholesterol (hypercholesterolemia), and pregnancy-induced high blood pressure (including preeclampsia).
As Keep Your Promises has documented, harmful levels of C-8 blood serum have been found in young girls in the Northern Kentucky water district, over 200 miles downstream from Parkersburg. We expect that future tests in communities in the mid-Ohio Valley and down the Ohio River will reveal harmful levels of C-8 in drinking water that can be attributed to DuPont. While DuPont and Chemours have presented the C-8 issue as contained, they have not accounted for the hundreds of thousands of people downriver from Parkersburg who are also likely affected nor have they accounted for the latest science on C-8 that lowers the level at which the chemical is found to be harmful.
As recently revealed in Flint, MI, the failure of officials to act immediately to protect public health given knowledge of water contamination is a criminal misstep that seriously endangers all area residents. Public officials throughout the mid-Ohio Valley, like those in Vienna, WV, are now under increased pressure to respond to the prospect of C-8 contamination in the water supply. Keep Your Promises and others in the community are calling for DuPont to be held accountable for the filtration of Vienna’s water system and in all communities where C-8 contamination is found.
2. DuPont’s Form 10-K in January 2016 notes that Chemours’ exposure to environmental liabilities “may range up to $1 billion above the amount accrued.” How is Chemours accounting for this substantial increase?
DuPont’s Form 10-K notes that the potential liability from environmental remediation activities “may range up to $1 billion above the amount accrued.” We believe that while this prediction represents a huge increase, it is still woefully inadequate when compared to the true extent of the company’s potential environmental liabilities.
Starting in the 1980s and updated since then, under the direction of Martha Rees, who is now DuPont’s Chief Environmental Counsel, DuPont compiled a comprehensive study of sites and liabilities, known as the Rees Report, that could provide more certainty about the extent of potential future liabilities inherited by Chemours as part of the spinoff. The Rees Report has never been released.
Recently, Keep Your Promises has uncovered data on landfill sites where DuPont dumped C-8, and those sites alone call into question DuPont’s new environmental remediation estimate. DuPont’s lack of transparency makes it impossible to determine the accuracy of the company’s estimates, and stakeholders should demand the Rees Report, the details of the 171 environmental remediation sites, all third party sites, and full transparency regarding this vital matter.
3. Is Chemours adjusting its accrual for the current class based on the high likelihood of the upcoming bellwether trials resulting in punitive damages and the growth of the current class through the C-8 Medical Monitoring Program and increased public attention on the C-8 crisis?
Last week, Chief Federal Judge Edmund A. Sargus, Jr. of the Southern District of Ohio denied DuPont’s motion for a new trial in the first bellwether case, which resulted in a $1.6 million verdict for the plaintiff last October. With 40 trials scheduled per year and a failed appeal by DuPont, it is clear that the company must now begin to accept the reality of its huge obligations to the victims in the mid-Ohio Valley. In fact, publicity about the trials will likely increase the number of claims in the current class against the company.
In addition, increased utilization of the $235 million C-8 Medical Monitoring Program set up by DuPont can be expected to identify more individuals who have developed C-8 linked diseases from exposure to C-8 contaminated drinking water, resulting in growth of the current class. While DuPont and Chemours face a substantial risk of a sharp increase in claimants in the months and years ahead, this is not acknowledged in DuPont or Chemours’ filings.
Further, DuPont’s decades long cover up of the C-8 issue in the mid-Ohio Valley is now well documented and without question, increasing the likelihood of punitive damages in the upcoming bellwether trials. Given the already inadequate accrual for the current class, how will the company accrue for significantly larger liabilities resulting from this likely ruling?
The above questions, and Chemours’ leadership’s answers, should concern stakeholders for Chemours, DuPont, and Dow. While Chemours’ indemnification gives the company responsibility for the liabilities referenced above, when Chemours ultimately fails, DuPont will have no other entity backstopping these liabilities, which in turn will impact the viability of the proposed Dow-DuPont merger. We are eager to hear answers to these important questions on Wednesday’s call.