(Part one of a two-part series)The ongoing lawsuit over widespread PCB pollution in the Anniston area has become entangled in a political fight over who should run the cleanup.
The legal storm is blowing across parallel jurisdictions -ADEM and EPA, state and federal courts - as local litigants seek to establish their own preferred cleanup.
It all began two years ago, when 1,500 frustrated Anniston litigants against Monsanto demanded a speedy state court trial and cleanup of PCBs on their properties, in landfills, and in local waterways.
A year later, the federal government started down a separate path to negotiate a PCB cleanup agreement with Monsanto spinoff Solutia, Inc., which occupies the former Monsanto plant in Anniston.
The separate actions have reached a dissonant climax: A proposed federal consent decree resulting from the federal government's negotiations is now lodged in Birmingham federal court; and Friday afternoon, the final witness in the circuit court lawsuit testified about the potential state-led cleanup.
With the proposed federal agreement now in the public comment stage, the civil litigants, local activists, the state and the city - all now knitted together in the PCB trial - are looking at it and crying foul for numerous diverse reasons.
State and plaintiff attorneys are considering intervening in the federal agreement. How such intervention would affect the ongoing state court litigation remains unclear.
"It's quite an unusual case," said Bill Little, an attorney for the environmental division of the Alabama attorney general's office.
Attorneys for the 3,500 plaintiffs in the PCB lawsuit say they plan to petition the Birmingham federal judge for permission to intervene in the proposed federal agreement. They hope to exact a more rigorous remedy in state circuit court, including expedited PCBs cleanup and medical surveillance of PCB-exposed residents.
The state also is considering intervening in the federal court in order to preserve its crumbling authority in the PCB cleanup, as well as to protect its public property and waterway interests.
In sworn circuit court testimony in Anniston Friday afternoon, a state regulator who has been involved with the PCB site since the 1980s cast a dark view of EPA's decision-making process.
The regulator testified that EPA officials told him they anticipated that their federal court deal with Solutia would preempt a state court cleanup ruling.
Atlanta-based EPA attorney Richard Leahy said Friday evening that his agency has "always been concerned about what could happen in the (circuit) courtroom" regarding PCB cleanup, and "we believe the Superfund process is the best guarantor for a cleanup."
Leahy defended EPA against the implication that it is conspiring to preempt a state court ruling. Regardless of how it may affect the state court litigation, "we are required to lodge this (consent decree) in federal court," he said.
Conspiracy theories have run rampant, due in particular to some recent conversations between top Solutia officials and their shareholders.
More than a week ago, plaintiff attorneys played tapes in the circuit courtroom of top Solutia officials telling shareholders they had achieved a "mutual agreement" regarding the cleanup. The officials told the shareholders in the taped conversations that they did not anticipate Solutia's annual total remediation costs to exceed the normal range of $30-40 million. They said they did not believe the cost of cleaning up the waterways would be as high as the hefty $460 million cost of cleaning up the PCB-contaminated Hudson River in New York.
Regarding the litigation, the Solutia officials told their shareholders they were optimistic that the Alabama Supreme Court would dismiss the hundreds of "fear of future injury" claims or large punitive awards in the PCB litigation; and they said it is "difficult if not impossible" to prove that PCBs cause illness.
Solutia Chairman and CEO John Hunter said, in a conversation taped Feb. 25, "We find ourselves at the first step in what could well be a long process, which could include an appeal process as well."
Solutia officials have since lauded the agreement they reached with EPA and the Department of Justice.
Meanwhile, the state, the city, the plaintiff attorneys and community activists are expressing anger because, they say, they had little or no involvement in the negotiations between Solutia and the federal government, which were conducted behind closed doors in Washington, D.C. and Atlanta.
Consent decrees often are negotiated behind closed doors, but at a PCB site in Massachusetts, EPA regional authorities established a citizen panel to seek input and make reports on the status of the negotiations.
"Communication was horrid" with the EPA in the local case, said Anniston city attorney George Monk, who represents the city in the cleanup phase of the ongoing civil trial.
Monk said he was angry upon hearing some of the testimony in the trial, which he said indicated to him that federal regulators have not aggressively sought to protect community interests and did not seek the city's involvement on matters such as access to contaminated properties and planning the city's storm water ditch cleanups.
Overall, the cleanup phase of the state trial has established the most open technical scrutiny so far of the regulators' and Solutia's activities at the Anniston PCB site.
Some of the scrutiny has focused on the federal deal. For example, plaintiff attorneys accuse EPA of allowing Solutia to become "the fox in the hen house" by letting it conduct all of its own studies.
Plaintiff attorneys also have questioned why Solutia is fighting against providing medical surveillance of residents exposed to PCBs when Monsanto had established a medical monitoring program for its chemical workers in Anniston as early as the 1940s.
An expert for the plaintiffs testified that a medical surveillance program in western Anniston could cost "tens of millions."
A linchpin of Solutia's defense strategy is controversy regarding PCB health effects. Solutia maintains that PCBs are not conclusively linked to any serious health problems except a painful skin eruption called chloracne.
EPA and its sister health agency, the Agency for Toxic Substances and Disease Registry, list PCBs as a probable carcinogen, and they support scientific evidence that PCBs are linked to a number of health effects, including liver, thyroid, immune system and childhood developmental losses.
EPA officials have said they will supervise Solutia's work and require the company to use EPA-approved risk calculations.
EPA will hold two public meeting about the proposed PCB deal April 16 at the Carver Community Center.
At local request, the U.S. Senate Committee on Veterans Affairs, Housing and Urban Development and Independent Agencies will hold a hearing April 19 on the Anniston PCB cleanup controversy.
Anniston activists, including David Baker, president of Community Against Pollution, plan to raise concerns at these meetings. Baker is worried about the two PCB-containing landfills near the former Monsanto plant, the lack of a health clinic for the contaminated residents, and the lack of a comprehensive health study.
"Solutia should be paying for some, if not all, of those costs," Baker said.
Also see:
Whats with the holdup?
