According to two Alabama agencies, plaintiff attorneys and environmentalists, the federal government is bungling Superfund in Anniston.Federal officials are reviewing 1,000 pages of positive and negative public responses to EPA’s handling of the Anniston PCB pollution.
Meanwhile, attorneys representing 3,500 plaintiffs suing for PCB damages are petitioning to intervene in federal court to block the EPA’s draft consent decree. In the decree, Solutia, Monsanto and Pharmacia agree to conduct a long-term, Superfund-style investigation and risk assessment of the PCB pollution.
The state also is drafting a petition to block the decree.
The EPA is preparing its response to the plaintiffs’ petition to intervene, and has a deadline to file by June 20, officials said.
Solutia, which has primary responsibility for the cleanup, remains satisfied with the decree. Company spokeswoman Beth Rusert said it is the best method to get the contaminated areas permanently “cleaned up as quickly as possible.”
Specific criticisms of the EPA’s deal with the companies are contained in comments recently filed with the Department of Justice.
The Anniston Star has obtained seven of the 360 letters and petitions filed during the decree’s public comment period, which ended June 3.
The EPA and the DOJ declined to immediately provide the rest of the comments, 360 letters totaling 1,000 pages, still under review by federal officials in Washington, D.C., and Atlanta.
“It’s a large number of comments for a consent decree,” said EPA assistant regional attorney Dustin Minor. He said 341 letters with 370 signatures were favorable to the EPA’s deal with the companies, 19 letters with 29 signatures were unfavorable and 16 petitions with 786 signatures were unfavorable.
Minor declined to discuss the subject matter of any of the comments. “We are going to be providing written responses to the court. Discussing what is in the comments would be inappropriate at this time,” Minor said.
He estimated that the comments will be made public with the EPA’s responses in July. At that time, the EPA can modify the decree, withdraw it or submit it in its current form. Unless the EPA withdraws it, the decree, the comments and the EPA’s response to the comments will be handed over to U.S. District Judge U.W. Clemon for a final ruling, Minor said.
“Once we give it to the judge, we have no control over the timing,” he said.
The negatives
The six comments and one petition — from state agencies, environmental groups, citizen groups and a plaintiff attorney — received by The Star were all negative. Overall, the actions promoted in the state and plaintiff attorneys’ comments are different from the environmental and grassroots group, but the criticisms of the decree itself have similarities.
In the comments collected by The Star, all of the decree’s opponents say the Superfund-style investigation does not go far enough; that it was negotiated in bad faith; that it doesn’t hold the polluter strictly accountable; and that it doesn’t address community needs.
In his stinging letter submitted to the DOJ, plaintiff attorney Donald Stewart declared, “The fact that the Anniston site has never been placed on the National Priorities List, despite being the most contaminated PCB site in the country … is itself an indication of the astonishing apathy on EPA’s part to the Anniston PCB catastrophe.”
Stewart listed numerous aspects of the consent decree and the ongoing PCB investigation that he feels are getting botched, including water, groundwater and air monitoring. He added that there is “no need to wait for further ‘risk assessments’ before residential soils are remediated to a safe (non-detect) level.”
In a no-less-stinging comment provided by three national environmental groups, Riverkeeper Inc., Environmental Working Group and U.S. Public Interest Research Group (USPIRG): “EPA’s secret discussions with Monsanto and its failure to involve the community destroys the credibility of the ‘partial’ consent decree.”
Community Against Pollution, a western Anniston grassroots group, claimed that the companies should not be “rewarded by allowing them to conduct their own baseline risk assessment, control the cleanup, set the standards for the cleanup and actually do the cleanup themselves.”
The Alabama Department of Environmental Management stated, “Unlike the comprehensive state permit requirements it seeks to pre-empt, the proposed consent decree only addresses the Remedial Investigation and Feasibility Study.”
And from the Alabama Attorney General: “The broadening of the (PCB) site under EPA control appears to be an attempt to provide Solutia and Pharmacia a shield from the state court’s authority.”
Superfund woes
A former EPA attorney who is now closely scrutinizing the federal government’s handling of New York’s PCB-contaminated Hudson River and the Anniston PCB site says that she feels the EPA’s Superfund program is “being undermined, nationally.” She and others have criticized the draft consent decree for “watering down” the requirements under Superfund law.
Janet MacGillivray, who now works for Riverkeeper in New York, believes the best possible assurance for an Anniston cleanup is listing on Superfund’s National Priorities List.
The EPA is listing fewer and fewer contaminated sites on the National Priorities List. The NPL designation authorizes the EPA to use its Superfund account for cleanup costs if the polluter does not agree to pay.
Most agree that Superfund’s fast-draining account for cleanup costs is a major culprit for the slowdown. The federal government historically has relied on corporate taxes to fund NPL costs, but Congress has not reauthorized the taxes.
Meanwhile, the Bush administration has signaled that it wants to shift the burden of NPL costs from corporations to ordinary taxpayers.
“There is clearly a slowdown in national listings, while (the EPA) figures out how much money it has,” said Kate Probst, a senior fellow at Resources for the Future, a non-partisan, Washington, D.C.-based social research organization, which last year completed a congressionally-funded evaluation of Superfund’s future costs.
While it may have broad consequences in Anniston and elsewhere, the NPL slowdown may not be responsible for the EPA and DOJ’s negotiated settlement with Solutia, Monsanto and Pharmacia.
In 2000, Solutia expressed its intent to negotiate a cleanup agreement with the EPA’s Superfund program, and has signed numerous interim cleanup agreements with the state and federal agencies.
Solutia’s intent to settle was further reinforced in January, during the heat of the Anniston civil PCB trial, when Solutia’s chief negotiator, Alan Topol, told the DOJ in a letter that a settlement was of “utmost importance” to the companies.
The EPA’s Atlanta-based Region Four office is generally known for trying to work out cleanup deals with companies rather than aggressively pursuing NPL listing, according to Probst.
“Region Four is not known for putting sites on the NPL,” she said. “Region Four really prefers to do cleanups as NPL equivalent.”
Superfund worries
“NPL equivalent” — running a negotiated cleanup under the auspices of Superfund but not listing the site on NPL — is the direction EPA is taking in Anniston, and it has environmentalists crying foul.The Environmental Working Group fears that the Bush administration is tampering with Superfund and that, as a result, towns like Anniston are getting short shrift.
EWG, a Washington-based non-profit, has filed Freedom of Information Act requests seeking to find out if the administration or other high-ranking officials influenced “the timing and the nature” of the draft consent decree.
MacGillivray, of Riverkeeper, EWG and USPIRG want the EPA to list the large and complicated Anniston site on the National Priorities List and scrap its so-called “sweetheart deal” with the companies responsible for the PCB pollution — Solutia, Monsanto and Pharmacia, the latter’s parent company.
The EPA and DOJ officials have said repeatedly that they decided to file the consent decree in federal court, rather than file it as an administrative (unappealable) order, to allow residents to comment on it.
However, a state official has testified that the EPA officials may have had another motive — he said one official told him that the judicial filing would pre-empt cleanup in state civil court.
Grant Cope, of USPIRG, a non-profit advocacy group that focuses on state environmental issues, said the EPA has not been responsive to Anniston community concerns. He pointed to the decree itself as evidence.
For example, the decree requires the companies to develop a community relations plan, “including an application process and eligibility criteria” for awarding and administering up to $150,000 to enable citizen groups to hire technical advisors to help interpret and comment on PCB site-related documents.
Cope noted, “It’s a perversion of the process to inject Monsanto at all in the public-participation process.”
Community Against Pollution also asked the EPA to withdraw the decree and “start over, or at least do a great deal of modifying … this time with the best interest of the community in mind,” according to its public comment letter sent to the DOJ.
Shirley Baker, a health educator for the grassroots group, is worried that the EPA is not going to provide enough supervision of Solutia throughout the cleanup process.
In the letter provided to the EPA, her organization asked, “If strict supervision is going to be instituted by EPA would it not be better to perform the task themselves? This would save time, money and frustrations on both sides.”
In some ways, CAP’s concern is similar to other concerns expressed by other PCB-contaminated communities that have EPA-negotiated settlements.
In Pittsfield, Mass., for example, activist Tim Gray said his group, the Housatonic River Initiative, was “70 percent pleased” with the EPA’s deal with General Electric, the company deemed responsible for polluting neighborhoods and the Housatonic River with PCBs.
The remaining 30 percent of the EPA’s consent decree “was enough to make our heads spin,” he said.
Gray said community activists were able to get some key concessions from the EPA, but not enough to make him think Pittsfield is getting a satisfactory cleanup.
The state’s way
State officials and plaintiff attorneys in the ongoing PCB trial want the deal scrapped, too, but they want the environmental cleanup authority for waterways, floodplain and landfills to remain with the state.Whether to support federal or state cleanup action is a bit of a mind-bender for people who live in the polluted part of western Anniston.
“There are so many devils in there that can go both ways,” said Mark Morgan, an Anniston native who lives near Monsanto and has PCBs in his blood and his yard.
Morgan is a plaintiff in Stewart’s lawsuit who, like many others living on contaminated property, wants a fast, thorough cleanup. While Morgan remains outspoken and angry about the state’s activities around the PCB plant since the 1970s, he’s lost faith in Superfund and wants the state to handle the plant site and waterway cleanup.
State officials worry that their regulatory programs are being undermined.
The EPA and DOJ officials have said they chose a proposal to overstep ADEM’s lead role in the environmental cleanup (ADEM does not dispute the EPA’s lead role in the residential cleanup) because “one, overarching authority” was needed to ensure a comprehensive cleanup.
Speaking on the EPA’s behalf, Martha Judy, an environmental law professor at Vermont School of Law, said that the Superfund statute has bigger teeth than the state-authorized regulations.
“I don’t think the state has that kind of leverage,” she said. “There is no evidence of the state moving faster because it is not cleaned up,” she said.
But Alabama Attorney General Bill Pryor and ADEM officials charge that the decree is contrary to the intent of Superfund because it reduces the “legitimate authority” of the state of Alabama and may result in additional cleanup delays.
ADEM cited several Superfund cleanup delays in Alabama — such as the mercury-contaminated Olin Corporation facility in McIntosh — and laid the blame squarely on the EPA.
Both agencies complained that the EPA abandoned its longtime policy to defer to state programs for cleanup when a state effort is already under way. ADEM said the EPA has not provided a satisfactory explanation for it.
On this matter, ADEM is backed up by Steven Brown, acting executive director of the Environmental Council of the States, a nationwide group based in Washington, D.C.
“We think EPA ought to defer to the states unless there is a good reason they can give everybody,” Brown said.
He noted that Superfund is one of the few environmental statutes that doesn’t allow states to adopt an equivalent program. “This sets up a conflict when you have a Superfund settlement butt up against (state) programs.”
Brown said it is typical for state and federal agencies to disagree about how to clean up federal facilities, but not so often about cleaning up industrial facilities.
He cited notable exceptions, including the ongoing dispute over cleanup of the Coeur d’Alene/Spokane River Basin in Idaho. A vast chorus of residents and officials from two states are disputing the EPA’s proposed $359 million cleanup to address heavy metal pollution and are filing lawsuits to block the cleanup.
“It doesn’t happen all that often, but when it does, it’s a stinking mess,” Brown said.
