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Proposed Settlement in PCB Case Denounced
Published on Sunday, March 24, 2002 in the Washington Post
Proposed Settlement in PCB Case Denounced
Activists, State Officials Attack the Deal as a Last-Minute Reprieve for Corporate Polluters
by Michael Grunwald
 
The Bush administration will file an agreement tomorrow calling for an immediate study and eventual cleanup of the PCB-drenched city of Anniston, Ala., but local activists and state officials are attacking the deal as a last-minute reprieve for corporate polluters.


This is the smelliest thing I've ever seen. It's worse than Enron.

Donald Stewart
Attorney for residents
The proposed settlement comes four weeks after an Alabama jury found Solutia Inc. liable for "outrageous" behavior by the former Monsanto Co., which released tons of toxic PCBs into Anniston's streams and covered up its actions for decades. The judge in that case has blasted Solutia and has threatened to force the firm, which was created when Monsanto spun off its chemical operations in 1997, to undertake a comprehensive cleanup in Anniston. Pharmacia Corp., created when Monsanto merged with Pharmacia & Upjohn in 2000, is also a defendant.

Now Solutia is arguing that since it has signed a consent decree with the Environmental Protection Agency and the Justice Department, the Alabama judge has no business ordering additional cleanup measures. Donald Stewart, an attorney for 3,500 residents suing Solutia, described the settlement as a "sweetheart deal" and attacked the Bush administration for overruling state environmental officials who have joined his lawsuit.

"This is the smelliest thing I've ever seen," said Stewart, a onetime Democratic senator from Alabama. "It's worse than Enron."

Alabama Department of Environmental Management attorney James Wright also attacked the deal as an "unwarranted and unauthorized" federal takeover that was "contrary to long-standing EPA policy." Meanwhile, documents from the EPA's negotiations with Solutia surfaced in court last week, showing that the agency settled for much less than it initially requested. And lawyers played a tape of Solutia CEO John C. Hunter telling analysts there was a "mutual understanding" that his firm would not have to increase its spending on cleanups in Anniston.

In a statement, Hunter hailed the consent decree as "a major step toward an effective, permanent cleanup for the Anniston community." EPA regional counsel Phyllis Harris pledged to work with Alabama officials to address their concerns, emphasizing that the public will have 30 days to comment before the settlement is finalized. EPA officials have publicly questioned the need for some of the more drastic proposed cleanup measures, but Harris said no decisions have been made.

"We feel very strongly that this is the best way to protect the health of the community," she said. "Solutia has been very litigious, and we want to get the ball moving."

The deal's Alabama critics complained that the ball will be in Solutia's court, and suggested that high-level politics had helped get it there. EPA Administrator Christine Todd Whitman approved the Anniston settlement, after Deputy Administrator Linda Fisher, a former Monsanto lobbyist, recused herself. Monsanto and Solutia, both St. Louis firms, were also among Attorney General John D. Ashcroft's top contributors when he was a Missouri senator, but his spokeswoman said he was not involved in the settlement decision.

The consent decree will essentially add Anniston to the Superfund program without branding it a Superfund community. It will require Solutia to investigate Anniston's contamination, evaluate the health and environmental risks, and suggest a cleanup strategy to the EPA. But Stewart's documents show that the agency once had tougher measures in mind.

For example, the EPA originally proposed conducting the assessments itself, but it agreed to a mere oversight role after Solutia balked. EPA officials also wanted Solutia to fund a major health study in Anniston, where blood tests of the local population have revealed PCB levels unprecedented in a residential community, but ultimately allowed the firm to pay $3.2 million for special education there instead. Solutia will also pay $6.2 million to reimburse the EPA's costs in Anniston, plus $150,000 for a community panel to help oversee the cleanup. But anyone who has sued Solutia is ineligible to serve on that panel, which would bar more than 20,000 area residents.

The documents also show that the EPA initially limited its jurisdiction to homes near the plant, leaving nearby creeks and the plant site to Alabama regulators. Harris said the agency decided to expand its jurisdiction to make sure the agreement was comprehensive, but local activists noted the decision came after Solutia lost its case in court, and after Judge Joel Laird warned he might order a more stringent cleanup than the EPA.

"This is not what the community wants," said David Baker, president of Citizens Against Pollution, a grass-roots group that helped persuade the EPA to set up an Anniston office.

PCBs, short for polychlorinated biphenyls, were once common industrial coolants, but they were banned in 1979 after they were found to be persistent in nature. The EPA also considers them "probable carcinogens" and warns they have been linked to neurological and developmental problems. The Bush administration recently ordered General Electric to spend $460 million to dredge PCBs out of the Hudson River in New York, and scientists say the PCB contamination from the former Monsanto plant in west Anniston is far more intense.

Monsanto was the only U.S. manufacturer of PCBs, and documents have shown that company officials concealed the contamination of Anniston in an effort to protect their monopoly. Solutia has already spent about $46 million to clean up PCBs in Anniston, plus more than $40 million on legal settlements. And last month, a jury in Gadsden, Ala., held the company liable for negligence, wantonness, suppression of the truth, nuisance, trespass and outrage. It has not yet awarded damages -- Stewart predicted in court that they could reach $1 billion -- but Laird has already appointed a special master to investigate cleanup options.

"It's obvious to this court that the same attitude that Monsanto or Solutia exhibited years ago still exists today," Laird said earlier this month. "That is a lack of concern for the environment, a lack of concern for their neighbors."

On Friday, though, Solutia attorneys asked the judge to dismiss the plaintiffs' request for a court-ordered cleanup, arguing the consent decree should supersede it.

"We understand that Anniston residents have concerns about the impact of PCBs in their community," Hunter said, "and we're committed to doing what's right. . . . This consent decree is an important milestone in achieving that goal."

Justice Department lawyers will file the consent decree in federal court in Birmingham tomorrow. The Alabama attorney general will probably try to block it. Meanwhile, the trial in Laird's courtroom will continue. And another lawsuit filed by 15,000 Anniston residents has yet to begin.

© 2002 The Washington Post Company

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