The companies blamed for widespread PCB pollution in northeastern Alabama are poised to sign a deal with the federal government to clean it up.
The federal government has hammered out a consent decree with Solutia, Monsanto and Pharmacia that would force the companies to conduct a long-term Superfund evaluation of all the PCBs that leaked from the former Monsanto plant in western Anniston. The PCBs have been found to have polluted the air, ditches and yards in low-income neighborhoods as well as rural and urban creeks, recreational lakes and a 40-mile stretch of floodplain.
Because the parties reached an agreement, expected to be signed next week, the Anniston PCB site will not be added to the EPA's National Priorities List of the most contaminated sites in the country, EPA officials said. However, if the companies refuse to comply with an EPA-mandated cleanup, the site could be added to the NPL in the future, the officials said.
Due to the lengthy regulatory process, it may take several years for EPA to make a final decision on how much the companies must pay for a comprehensive cleanup, such as the $460 million PCB dredging the agency recently mandated for the Hudson River.
The agreement says that if Solutia cannot handle the costs of the investigation and future cleanup, Monsanto and Pharmacia must supply funding.
The decree follows a year of quiet negotiations between EPA, the Department of Justice and the three corporations in Washington, D.C., Atlanta, and corporate headquarters in St. Louis, Mo.
After the decree is signed, it will be lodged for public comment for 30 days in U.S. District Court in Birmingham.
The Environmental Protection Agency will announce the decree next week, according to EPA officials. and while some PCB litigants and state officials already are criticizing it, federal officials hail it as one of the best agreements the agency has ever reached with a polluter.
"I feel that this is one of the best consent decrees we've ever had," said Annie Godfrey, the Atlanta-based EPA official who will supervise the Anniston PCB Superfund investigation and cleanup.
Solutia officials maintain that PCBs have not caused significant health or economic problems in the Anniston area, but they say they are satisfied with the consent decree.
"It's going to get everything done in an expedited manner," said Dr. Robert Kaley, Solutia's chief of environmental affairs.
The Anniston Star obtained a copy of the final draft of the consent decree Thursday.
The decree strips the Alabama Department of Environmental Management of its supervisory role over investigations in PCB-polluted waterways and at the former Monsanto plant.
This has caused dismay at ADEM. "In the words of Lyndon Johnson, it grieves my heart," said ADEM attorney Charles Wright.
Meanwhile, attorneys in an ongoing PCB civil trial in Gadsden accuse EPA and Monsanto of colluding to avoid a potentially stricter cleanup under a state court order. While EPA's consent decree heads to federal court, Donald Stewart, the plaintiffs' attorney in the lawsuit, is arguing before a circuit judge in order to secure a state court-ordered PCB cleanup in the Anniston area that he says he feels will be more stringent than the EPA-mandated program.
State authorities have teamed with the plaintiffs in the case. The Alabama Department of Environmental Management, the city of Anniston and the State Attorney General have said they will cooperate with a potential state court-ordered cleanup.
When EPA files its consent decree in federal court, it likely will clash with the proposed remedies sought in the state court. The 3,500 Anniston plaintiffs suing Monsanto, Solutia and Pharmacia also want medical monitoring and they want the Solutia cleanups of soil, water and sediment in the surrounding areas to be reviewed by an expert panel of scientists.
Recently, EPA decided to expand the Superfund site beyond residential areas to include the waterways and floodplains. Those previously had been handled under the ADEM-led investigation.
"I just think it's an underhanded scheme to avoid the jurisdiction of this (civil) court," Stewart said.
EPA officials declined to comment on why they decided to take over the waterways and plant site investigation from state authorities. EPA regional attorney Richard Leahy noted, however, that the site had garnered attention from "the highest levels of EPA," and the decision was made that a comprehensive Superfund assessment was needed for the entire area impacted by PCBs.
Stewart also complained that EPA has lessened its initial demands on the companies, such as requiring Solutia, Monsanto and Pharmacia to pay for a comprehensive PCB environmental health evaluation for residents.
According to court documents obtained by The Anniston Star, EPA and Justice Department attorneys originally asked Solutia in January 2001 to fund a comprehensive environment health program in the Anniston area.
Scientists link PCBs to myriad human health problems, including neurological effects in children and thyroid, liver and skin ailments. The EPA also lists PCBs as a probable carcinogen.
In EPA's January 2001 letter to Solutia, "We shot for the moon," EPA assistant regional attorney Dustin Minor said in a recent interview. He added that EPA asked for the health program because western Anniston community activists requested it. Instead, "(Solutia) came back with a proposal for an education trust."
EPA and the Justice Department withdrew the demand for an environmental health program, and the negotiation turned to establishing a $3.2 million trust for special education needs in western Anniston, court records show.
EPA's Leahy said a health study program is still a possibility if Solutia is not involved.
The Agency for Toxic Substances and Disease Registry will take responsibility for future environmental health studies in Anniston, he said. "The consent decree does not impinge on (ATSDR) doing additional work."
Anniston environmental activist David Baker, who has not read the draft consent decree, said he believes that since the companies "have already given us the poison" they should play a major role in funding PCB health studies. "We still need the health assessment - it gives us a better picture of what PCBs have done and will do to this community."
The federal attorneys also originally asked Solutia in January 2001 to pay for an EPA-led risk assessment of PCB pollution in the Anniston area.
Stewart, who questioned a Solutia engineer about the draft consent decree this week in a civil court hearing, said he thinks the decree is fundamentally flawed because it designates the polluter to do the work.
This week, Charlie Cunningham, a member of Stewart's legal team, accused EPA of "letting the fox into the hen house" by allowing Solutia to conduct the Superfund evaluation and the related human and ecological risk assessments.
"That is an unfortunate perception," Leahy responded.
Court records obtained by The Star show that in February 2001, Solutia and Monsanto attorney Allan Topol, of Washington, D.C., suggested that Solutia conduct the risk assessment. After initial resistance, EPA and the Justice Department later agreed with his suggestion.
Leahy said Solutia would be strictly supervised to ensure it follows EPA procedures in the risk-assessment stage.
Calhoun County Circuit Judge Joel Laird, the judge in the civil trial, says he will continue to consider a state court-mandated PCB cleanup. Thursday, Laird appointed a special master to assist him to reach a final ruling in the cleanup phase of the trial.
Among the requirements included in the federal consent order, Solutia must:
· Begin immediate work on an investigation of all areas where soil, sediment, air, water and other material may contain PCB pollution from the plant; perform a human and ecological health risk assessment.
· Supply monthly progress reports to EPA, including all results of sampling reports and tests.
· After the investigation, conduct a feasibility study and recommend alternatives for a comprehensive cleanup.
· Pay $3.218 million over a 12-year period to fund a foundation for western Anniston, which will provide special education, tutoring and other services for children in western Anniston with learning disabilities or other special needs.
· Develop a plan to fund EPA's selection of a community advisory group (CAG) for the PCB-impacted areas and pay $150,000 to pay technical advisors for the CAG.
· Continue to perform emergency removals of contaminated soil at the residences where yard dirt contains 10 parts per million of PCBs.
· Pay EPA's past and future costs related to the PCB investigations.
After Solutia completes the remedial investigation and feasibility study, EPA will use the study to develop a proposed plan for cleanup and a formal record of decision. EPA's cleanup plan and the record of decision will then be submitted for public comment.
