Wednesday, June 18, 2003

Monsanto in Alabama

How did Monsanto avoid a pollution crackdown in Alabama?

Documents obtained by the Environmental Working Group (EWG) through Freedom of Information Act (FOIA) requests and a review of court records show that a federal cleanup agreement between Monsanto and the US Environmental Protection Agency (EPA) changed significantly in Monsanto’s favor just seven days after Administrator Christine Todd Whitman received a “briefing” she had requested on the company’s PCB pollution in Anniston, Alabama.

The Anniston “partial” consent decree would govern how the community would be cleaned up after decades of ongoing pollution from Monsanto’s former PCB operations at its chemical plant in this small Alabama community. The term “partial” indicates that the consent decree merely seeks a study of the contamination, not an actual cleanup. This term is rarely, if ever, used by EPA, another reason why this agreement is so unusual. One leading scientist has labeled Anniston “the most contaminated place on earth.”

The Anniston cleanup agreement is pending final approval in federal court, which could come at any time.

Anniston's local citizen group, Community Against Pollution and Environmental Working Group have written a letter to Administrator Whitman once again seeking to learn the details of the deal the Agency cut with Monsanto.

EWG has sought for more than 15 months to understand how the consent decree was written, and by whom. EWG has asked which Monsanto officials had any role in negotiating or drafting it with federal officials, specifically at EPA headquarters. These inquiries, under the Federal Freedom of Information Act, have been met with a pattern of resistance and non-answers from Administration staff members, including those in Administrator Whitman’s office.

Among the few documents obtained through the FOIA requests was a heavily-redacted memo indicating that Administrator Whitman requested and received a 45-minute “briefing” on the Anniston situation days after a state jury found Monsanto liable on all counts, including negligence, wantonness, nuisance, suppression of the truth, trespass and outrage. Outrage is a rarely successful tort claim that under Alabama law describes conduct “so outrageous in character and extreme in degree as to go beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in civilized society.” Court documents show that within a week after Whitman’s meeting, a key change was made to the Anniston consent decree that was highly favorable to Monsanto. The very existence of the consent decree became public only after a Monsanto employee admitted as much under oath in an Alabama courtroom later that month.

The topics of discussion for Whitman’s meeting were redacted from the memo EWG obtained. EWG assumes that the meeting covered the consent decree discussions that were then underway because the document indicates that an unnamed Department of Justice official was present. Given the presence of a Justice Department official, it appears that the March 6 “briefing” was more of a decision-making meeting, not just an update for Whitman on the situation as it had unfolded to that point. The change made to the consent decree subsequent to Whitman’s meeting was a major one, and it was highly unusual.

The change essentially blocked a nearly certain state-ordered cleanup of the actual pollution source and substituted not a federal cleanup, but a federal study. Historically, the Agency has pre-empted state toxic waste cleanup authority in order to catalyze action in cases where state regulators were proving sluggish or taking no action. The change made to the Anniston consent decree, so soon after Whitman’s meeting, essentially traded pending state action for federal inaction regarding one of the most polluted places — and some of the most polluted people — on Earth. The nature of the change made sometime after Whitman’s March 6, 2002 meeting also stands in direct contrast to the Administration’s oft-stated philosophy of further devolving execution and enforcement of federal anti-pollution laws to state governments.

Whitman and other EPA officials have repeatedly stated that the Anniston consent decree was the product of career, regional office staff. That characterization of the decision-making does not square with the fact that the consent degree changed so significantly shortly after the joint EPA-DOJ meeting Whitman had requested. Moreover, in trial testimony that very month, a key environmental official with Solutia (formerly Monsanto) stated he had been to a number of meetings in Washington during negotiations on the consent decree.

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