With the hopes of 3,600 current and former Anniston residents and a large corporation at stake, lawyers will stand before a district judge Monday and tell him why Monsanto Corp. should or should not pay for property damages and illnesses in PCB-contaminated neighborhoods.
The jury trial, set for Oct. 1, has been four-and-a-half years in the making. During Monday's pre-trial hearing in Gadsden district court, lawyers will present their arguments to District Judge Joel Laird, who will make final determinations on how the case, a combination of three lawsuits filed by Donald Stewart in 1996, should proceed.
Stewart, the plaintiffs' attorney, is claiming substantial damages for his clients and injunctive relief in the form of a community health study and a comprehensive cleanup of the chemical plant site and the local watershed. Stewart said the cleanup activities by state and federal agencies so far are woefully insufficient.
In a recent letter to Frederick Kuykendall, the special master appointed by Laird to review technical aspects of the case, Stewart said the "urgent need" for injunctive relief is supported by the U.S. Environmental Protection Agency's recent decision to dredge PCBs from New York's Hudson River. "There is no legitimate reason why the residents (and fish) of New York should be treated better than the residents of Alabama," he wrote.
Last week, Kuykendall issued a 31-page report rejecting Monsanto's request for dismissal of the plaintiffs' request for preliminary injunctive relief. Kuykendall said the jury must rule on injunctive relief following the trial.
Monsanto attorneys maintain that the agencies are the proper decision-makers for a cleanup, not a jury. Monsanto is required to spend $21 million to clean up approximately 40 miles of PCB-contaminated waterways, as a result of the 1999 Dyer vs. Monsanto settlement. However, the court did not stipulate how the cleanup should occur. Solutia Inc., Monsanto's spin-off company, hired contractors to study the watershed and create a cleanup plan. The Alabama Department of Environmental Management is monitoring their work, said Monsanto attorney Buddy Cox.
Since 1996, Stewart has collected hundreds of blood, soil, surface water and sediment samples. He has enlisted national experts to analyze the results and to present evidence of PCB toxicity to humans. Company officials say the medical literature is inconclusive and question the quality of Stewart's testing.
Whether Monsanto will have to pay depends on either a jury verdict or the ever-present possibility of an out-of-court settlement. A previous attempt to mediate the case was unsuccessful.
In the past 30 years, Monsanto has settled numerous PCB-related cases out of court. In the last two years, the company agreed to pay more than $80 million to property owners in Calhoun and Talladega counties.
Meanwhile, at least 20 cases against Monsanto still are pending in state and federal courts. And last week, celebrity attorney Johnnie Cochran met with 5,000 potential litigants in a western Anniston meeting hall and vowed to help clean up the PCB contamination that has resulted in a Superfund investigation, property buyouts and chain-link fences around former homes and businesses in western Anniston.
Judge Laird, who will hear the case in his Gadsden courtroom, said he wants to move forward with presenting the plaintiff's property and injury claims to the jury. "Then we can decide about the injunctive relief."
The injunctive relief proposed by the plaintiffs includes:
Excavating Solutia's capped southern and western landfills "down to clean, unweathered rock;" excavating the retention basin, north of Alabama 202; and excavating 55 acres of PCB-contaminated land that Solutia has covered with a geotextile material. Stewart maintains that the geotextile caps and covers do not prevent PCB migration to the groundwater, surface water, soil and air. Solutia officials claim the caps and covers are effective because of the current lack of detectable PCBs in storm water runoff.
Dredging and building treatment facilities for PCBs in Snow Creek and the Choccolocco Creek/Lake Logan Martin system. Stewart said the environmental agencies have "failed to recognize the role of aqueous phase PCBs and contaminant redistribution" within the watershed. He said water column samples from Snow Creek show PCB concentrations "comparable to those found in the upper reaches of the heavily contaminated regions of the Hudson River system," where the EPA has ordered dredging. Defendants agree that contaminated sediment from unremediated ditches still may be moving through the creek system, but they deny the alleged air and groundwater contamination leaking from the landfills and other contaminated soils into the watershed.
Blood testing for dioxins and furans in plaintiffs and other Anniston residents. So far, Stewart has collected blood samples from 10 residents showing dioxin and dibenzofurans, toxic byproducts of PCB manufacturing. "We expect to be able to show that there are dioxin and furans they have been exposed to, and that the source is Monsanto," Stewart said.
Epidemiological study of Anniston residents, to gather information on the incidence of cancer and other diseases in the community and comparison of the disease rate to a non-exposed population. Solutia claims that both dioxin/furan testing and the epidemiological study are forms of medical monitoring, which is not recognized under Alabama law. The controversial legal remedy of medical monitoring is being reviewed by the Alabama Supreme Court.
