Shortly after signing an agreement with the EPA this week to address PCB pollution in northeast Alabama, Solutia turned around Friday afternoon and used the deal to seek dismissal of a major part of the relief sought by plaintiffs in the ongoing PCB trial.
Shortly before 5 p.m. Friday, EPA and the U.S. Justice Department announced their intention to file the investigation/cleanup consent decree with Solutia and Pharmacia, the company that owns Monsanto, in federal court in Birmingham next Monday.
Hours earlier, Solutia had lodged a double-barreled petition to dismiss or defer the 3,500 Anniston plaintiffs' request for a court-mandated PCB cleanup.
The decree addresses all areas where PCBs may have leaked from the former Monsanto plant in Anniston, now owned by Solutia, including those previously supervised by the state environmental agency.
In a brief interview with The Anniston Star earlier this week, EPA administrator Christine Whitman said a negotiated cleanup is preferable to putting Anniston on Superfund's National Priorities List. "It's faster and it makes sure the polluter pays," she said.
Atlanta-based EPA attorneys said Friday they didn't know Solutia was filing a motion related to the consent decree in state court.
Regarding the apparent collision course of the consent decree and the cleanup phase of the PCB trial, which began two weeks ago, EPA attorney Richard Leahy noted, "The timing of everything has been very strange."
He said that the decree contains no substantive changes from the final draft, which was reported and described in The Anniston Star seven days ago.
The decree will require Solutia and Pharmacia to conduct a comprehensive investigation of PCB and other related contaminants from the former Monsanto plant, as well as conduct an ecological and human health risk assessment for PCB-contaminated areas.
The decree also requires the companies to continue cleaning up the worst-contaminated properties; provide $3.2 million for special education needs in Anniston; pay EPA up to $6 million for past investigative costs; and pay up to $150,000 to fund a community advisory group for the cleanup process.
The decree has been the subject of much heated debate in the civil trial. Plaintiff attorneys have accused EPA of "letting the fox into the hen house" by allowing the companies to perform the investigations. They also accuse Solutia of colluding with EPA and DOJ to avoid the potential that Calhoun County Circuit Court Judge Joel Laird will order a more stringent cleanup.
On the other hand, EPA officials assert that they are "not taking over the case in state court" and that they hope to work with "all parties," including litigants in the state court trial (the Alabama attorney general, the state environmental agency, the city of Anniston and citizen groups), in "promoting a cleanup that is as quick and technically sound as possible," according to Friday's announcement.
Plaintiff attorneys have previously estimated that a comprehensive environmental cleanup could cost as much as $500 million. That would not include the potential cost of medical monitoring, which they estimate to cost "tens of millions."
During a court hearing Thursday afternoon, plaintiff attorney Donald Stewart told Laird that Solutia and Pharmacia may be liable for $500 million to $1 billion to the 3,500 plaintiffs.
Solutia attorney Buddy Cox later made an oral motion on Thursday to dismiss the 3,500 plaintiff's request for a court-ordered cleanup. Laird asked the defense team to file a brief with the court explaining their rationale. Solutia attorneys submitted the 46-page brief and 84-count motion early Friday afternoon.
According to the brief, Solutia believes the EPA decree will preempt the plaintiffs' claims for cleanup. In the motion for dismissal, Solutia also asserts the evidence in the PCB trial is not "legally sufficient" to prove a public nuisance in the city of Anniston, four northern Alabama counties and state waterways.
Laird said he will consider Solutia's claims "very seriously," but he told Solutia attorneys to file an even more detailed brief by 1 p.m. Monday and to provide him copies of relevant case law cited in Friday's brief.
"You need to make an argument on each of these (84) claims," Laird said. "I want to know what you are relying on to support every ground in this motion."
He added, "This motion here is a shotgun approach, and I don't like shotgun approaches."
Plaintiff attorneys said they will file a response to Solutia's motions early next week.
Plaintiff attorneys have described the EPA consent decree as insufficient to meet the needs of their clients, who have PCBs in their property and their blood. In the lawsuit, they ask Laird to require Solutia to pay for medical monitoring for people in the Anniston area who were exposed to PCBs, and they ask for PCB removals in waterways, landfills and other contaminated areas.
Anniston officials also have complained that the $3.2 million provided in the decree for special education programs in Anniston is not a meaningful sum.
The city of Anniston has joined with state officials, including the state attorney general, four district attorneys and representatives from the Alabama Department of Environmental Management, in asking Laird to appoint an expert panel to review cleanup activities in the Anniston area.
Local activists complain that the decree does not require Solutia to pay for environmental health assessments, as EPA had initially requested on their behalf.
EPA officials defend the consent decree as a comprehensive approach to address all of the PCB contamination that leaked from the former Monsanto manufacturing plant in Anniston, which produced PCBs until 1971.
They explained Friday that PCBs are considered probable carcinogens, linked to neurological and developmental problems, and said that they would require Solutia and Pharmacia to "investigate and address the serious (PCB) contamination in Anniston, Ala."
Federal officials have declined to discuss, to this date, the potential impact of the consent decree on the cleanup phase of the ongoing PCB trial, which began Jan. 7.
EPA generally does not intervene or otherwise participate in state court trials
"The bottom line is, there is no way I can comment on that," Leahy told The Anniston Star Friday night, explaining that he has not read Solutia's motion or the accompanying brief, and has not attended any of the hearings in the Anniston PCB case.
After the consent decree is filed in federal court, the state of Alabama may have the option to petition the federal judge to intervene in the agreement.
The state already is entangled in the circuit court trial. The Alabama Department of Environmental Management has signified its willingness to participate in a state-court-mandated cleanup. Wednesday, ADEM presented testimony and evidence to show what additional resources the agency may need to do a comprehensive cleanup under its Resource Conservation and Recovery Act (RCRA) permit.
Laird has appointed a special master to assist him in reviewing the evidence and testimony in the cleanup phase of the trial.
The Superfund federal statute says state authorities can require more stringent cleanup standards than EPA does. But such standards must be approved by the state legislature and must not be "adopted for the purpose of precluding onsite (cleanup) actions or other land disposal for reasons unrelated to protection of human health and the environment."
The statute also says a state can petition EPA to conduct a comprehensive cleanup if it can demonstrate "the capability to carry out any or all of such actions in accordance with (EPA) criteria and priorities
and to carry out related enforcement actions."
According to Solutia, however, the new consent decree will bar and preempt Laird from ordering a state-led cleanup.
Defense attorneys argued that "considerations of judicial economy dictate that the federal court should be the sole judicial forum for interested parties to present their positions," according to Friday's brief.
Solutia attorneys also cited federal case law that explains that once a consent decree is entered, "the state may not seek to impose additional penalties on the defendants for state and federal environmental violations adequately covered by the decree."
The attorneys argued that the court should "defer" additional proceedings in the cleanup phase of the trial "pending completion of the ongoing investigation and remediation process
and allow plaintiffs to exercise their rights to participate in and appeal from agency actions, if they choose to do so."
Laird ordered the attorneys to reconvene in his Anniston courtroom at 1 p.m. Monday.
Anniston Star Washington correspondent Jesse Bogan contributed to this report.
