June 18, 2003

Monsanto in Alabama: Full Story

After decades of polluting the people of Anniston, Alabama with some of the highest levels of carcinogenic PCBs on Earth, Monsanto was losing a large, citizen lawsuit in state court — one in a series of suits aimed at the company over its conduct. The state judge in the case seemed all but certain to order a far-reaching cleanup likely to cost the company several hundred million dollars.

However, a “partial” consent decree cleanup agreement had been quietly negotiated between the US EPA and Monsanto for months without the involvement or knowledge of the contaminated 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. The existence of the consent decree became public only when a company witness under cross-examination in the ongoing Anniston trial admitted efforts to negotiate a cleanup deal had been long underway. Without this private lawsuit brought by Anniston residents, the public would not have known about EPA's secret dealings with Monsanto.

Consent agreements for pollution cleanups are not uncommon, but what created the ensuing furor was that this agreement effectively replaced a state-ordered cleanup with a federally ordered study of the problem, with no assurances of a long-range comprehensive cleanup or health assessment for community members.

The news media, a Senate subcommittee (and EWG, for the last 15 months) pursued the immediate questions of origin and authorship of the Anniston consent decree. Whitman’s agency consistently responded by portraying the agreement as a routine product of regional office career staff. The Agency declined a request by Senator Barbara Mikulski (D-MD) and Richard Shelby (R-AL) that Whitman appear before their VA/HUD-Independent Agencies Appropriations Subcommittee to answer precisely such questions. The Agency instead offered to the Committee — and to 60 Minutes Correspondent Steve Croft — Region Four Deputy Administrator Stan Meiburg, who repeated the claim that the decree was produced by mid-level staff. [View document]

During their April 19, 2002 subcommittee hearing, Mikulski and Shelby demanded to know why Whitman had not appeared before them and expressed skepticism about Meiburg’s assertion. Mikulski followed up with a letter to Whitman, to which the Administrator, while saying she was kept in the loop, repeatedly played up the principal role of EPA regional staff in an effort to allay concerns that the agreement had been improperly influenced [bolding added]:

  • “As is typical with Superfund enforcement actions, EPA regional attorneys, technical staff and Department of Justice attorneys applied standard Superfund policies in negotiating the recently lodged Anniston Consent Decree. Routinely at Superfund sites, EPA regional attorneys and technical staff draft and negotiate agreements with responsible parties to have them undertaken necessary response actions with EPA oversight. EPA front-line and mid-level regional management review, comment and approve Superfund agreements. The authority to approve the commencement of a Remedial Investigation and Feasibility Study (RI/FS), like the one embodied in the lodged Anniston Consent Decree, is officially delegated to the regional branch chief level. Further, given the importance of the Anniston site to the Agency, Deputy Regional Administrator Stan Meiburg participated in the review, and ultimately approved the Consent Decree.
  • “In Regional 4, Deputy Regional Administrator Stan Meiburg approved all major decisions regarding the Consent Decree. Dr. Meiburg was also the Acting Regional Administrator from January 2001 to January 2002, when much of the Consent Decree was negotiated.”
  • “Both the signing and referral processes followed established procedures and were handled in the Anniston case in much the same way as in other Superfund consent decrees. The only difference was that in the Anniston Case, the Deputy Regional Administrator signed the referral of the Consent Decree to the Department of Justice because the Regional Administrator is recused.”

EWG has consistently pressed for a full accounting of the process of the Anniston consent decree negotiations to rule out even the appearance of any conflicts of interest. Officials in decision-making chains at EPA and other parts of the Administration have links to Monsanto and other PCB polluters with a long-range interest in the outcome.

For 15 months, EWG has pursued the simple question of who met with whom to produce the Anniston consent decree — and why key changes were made as the agreement evolved. These repeated efforts have been largely rebuffed, but EWG did receive documentation showing that days after a state jury found Monsanto liable on all counts, Administrator Whitman convened a previously undisclosed “briefing” on the topic. Within a week after this meeting, the agreement significantly changed in Monsanto’s favor. This meeting memo was disclosed after EWG appealed the denial of its initial FOIA request. The heavily-redacted memo evidences a lengthy, 45-minute meeting requested by Administrator Whitman. The 'Key Issues' and attached '2-pg Briefing Document' sections of the memo were redacted entirely. Notably, an anonymous representative from the Department of Justice attended the meeting, making it probable that the meeting was more than just a background “briefing” for Whitman with no substantive discussion of what should be in the Anniston consent decree.

The very fact that a consent decree was even in the works came to light through private litigation brought by Anniston residents, not through FOIA. During a dramatic cross-examination in the courtroom, a Monsanto employee admitted that Monsanto had been in settlement discussions with EPA for months, also testifying that he had attended several meetings in Washington. This was the first time that the public learned that EPA and Monsanto had reached an agreement and that there were competing drafts of the consent decree. [Excerpt | Full Document]

As made clear in the Alabama courtroom, the change in the consent decree’s language altered the definition of the pollution "site" that Monsanto would have to cleanup under orders of the State. The change stripped the State of its authority over the cleanup of the plant site itself and the surrounding waterways, which the State had been managing under its RCRA authority in a prior agreement with EPA. By changing the definition of the site, EPA took control from the state entirely, deciding to work directly and only with Monsanto in designing and implementing the cleanup.

This change meant that Monsanto could use, and, in fact, did use, the Anniston consent decree as the basis for a motion to dismiss the state court's authority to order a cleanup of the Anniston site. The potential cleanup costs are estimated to run as high as $500 million. The state court judge has stayed Monsanto’s motion to dismiss until the federal judge decides whether to approve the consent decree.

It was a potentially lucrative change for Monsanto, and the effective swapping of a state-court-ordered cleanup for the sake of a federal study is highly unusual, if not without precedent. This one change could save the company hundreds of millions of dollars in cleanup costs and potential damage to stock analysts’ valuations of the company and its spin-offs.

Administrator Whitman said in her letter to Senator Mikulski that she had “been briefed” on the situation. But the Anniston consent decree has repeatedly been described as a product of EPA regional staff at Meiburg’s level and lower.

One thing is clear: the timing of this highly beneficial change for Monsanto raises several questions: Was the Anniston consent decree revised in response to policy decisions in Washington? Who made that change happen? Did Monsanto officials or lobbyists exert undue influence on the process in Washington at the expense of the people and community of Anniston?