(Part two of a two-part series)Throughout Calhoun County Circuit Judge Joel Laird’s hearings on PCB cleanup, the judge has expressed dismay at the prospect of a slow-moving federal cleanup — his central question has been why can’t the process be speeded up?
Laird’s effort to find a way to cut the red tape around Anniston’s PCB site has been technical, controversial and extremely strenuous.
The hearings began, marathon-style, in Anniston in early March, with Laird and the attorneys on a grueling, almost-daily migration path from morning PCB trial sessions in Gadsden to afternoon cleanup hearings in Anniston — where more than 150 out of 3,500 plaintiffs have testified so far regarding property and emotional damage due to PCBs.
On Friday, the cleanup testimony ended.
However, Laird will not make his ruling until the special master he assigned to the case reviews the transcripts and provides her official report back to him, he said.
Meanwhile, Solutia attorneys are protesting — they say that Laird is legally preempted by Solutia’s recent federal agreement with EPA to investigate and cleanup PCBs and should not be allowed to order a cleanup.
Tempers in the Anniston courtroom have blasted on a few occasions, and boiled over when Laird threatened to hold corporate executives in contempt of court during a settlement negotiation. He also told Solutia’s lead attorney, Jere White that White also acted in bad faith but a “night in jail” probably wouldn’t help.
Solutia’s legal team has asked Laird to disqualify himself from the trial, based on his criticism of them. Laird has not ruled on the request yet.
Whatever its outcome, many critical questions have been raised in the cleanup phase of the trial. They include:
• Whether Solutia should be required to submit to a court-ordered and state-supervised cleanup of waterways, landfills and public properties contaminated by PCBs.
• Whether Solutia should pay for medical surveillance of the people exposed to PCBs.
• Whether Solutia and the federal agencies negotiated a flawed deal for the PCB investigation and cleanup.
• Whether Solutia and regulators have properly handled the PCB problem, so far.
Cleanup debate
Testimony in the cleanup phase of the trial has often danced around the question of whether a state or federal cleanup of the waterways and plant site (including the landfills) is preferable.
The Superfund process may take many years.
ADEM claims that it can achieve a quicker cleanup using the interim measures provision of the Resource Conservation and Recovery Act (RCRA) statute. The RCRA statute is enforced by state and federal authorities at sites like the former Monsanto plant, now owned by Solutia, which have hazardous waste units like landfills and off-site contamination.
ADEM has administered a RCRA permit at the Solutia plant and adjacent landfills since the 1980s and expanded the permit to oversee PCB investigation and cleanups in the mid-1990s.
In early days, the Anniston PCB site was considered for potential Superfund listing, but state regulators originally advocated against federal involvement. It wasn’t until the late 1990s, when the contamination was discovered in thousands of residents’ blood and potentially on hundreds of residential properties near the former Monsanto plant, that ADEM asked EPA to step in and take over the residential PCB investigation.
A schism between the federal and state regulators recently developed over how to manage the overall PCB problem, and last month, two major fall-outs occurred: ADEM declined to sign the federal deal with Solutia, and EPA took away ADEM’s primary oversight of the Solutia plant, landfill and waterways.
ADEM’s hazardous waste division chief, Steve Cobb, testified last week that ADEM did not sign the federal deal because it rejected EPA’s demand that the Superfund program retain final authority for PCB-related activities covered by ADEM’s RCRA permit for the plant site, landfills and waterways.
Federal officials have maintained that one “overarching” authority is needed to oversee all of the PCB activities.
In the courtroom, Solutia experts have testified that they feel the Superfund-led cleanup might be a better way to address Anniston’s PCBs.
However, plaintiff attorneys, the city of Anniston and the Alabama Attorney General say that more oversight is needed in the cleanup process — they have petitioned Laird to establish an expert panel to review PCB cleanup plans for the Anniston area.
ADEM has claimed that it is willing to cooperate with a court-mandated cleanup, but it requests additional funds to pay for additional ADEM personnel to administer and review the proposed project.
Medical monitoring
Laird has told the attorneys that it is unclear to him whether requiring Solutia to pay for health costs is an appropriate thing to do.
He noted, however, that EPA statutes, and perhaps state law, allows for a “health assessment survey.”
Plaintiff expert Dr. Arthur Frank presented an impassioned defense of a health monitoring program for people in Anniston who have been exposed to PCBs.
“We have here a situation where there is documented soil contamination. There is air contamination. There is water contamination. And it has contaminated people. And we have evidence in people that their levels rival or exceed that of what you get in (PCB) workers. This is not a question of uncertainty,” Frank said.
He noted that even though PCB health effects are diverse and complicated, “it’s no different than these many other situations where some kind of ongoing surveillance program is very appropriate from a preventative public health standpoint.”
Frank proposed a medical education program and regular screening for liver disease, cancer and other PCB-linked illnesses.
Medical surveillance is often mandatory in occupational settings where workers are exposed to hazardous chemicals, said Frank, a vice president for medical education and professor of occupational and environmental medicine at the University of Texas-Tyler.
But Solutia’s expert, Dr. Brian Forrester of Athens, Ga., criticized Frank’s proposed medical surveillance as potentially doing more harm than good for the tested population.
Forrester testified that “as far as I can tell, there is no specific disease that has been stated as something to look for in this population.” He also said a medical monitoring program shouldn’t be established if the prevalence of PCB-linked disease in Anniston is unknown.
Plaintiff attorney Charlie Cunningham asked Forrester, “nobody has bothered to look (for disease risk) because people are coming in saying there is no reason to look at these people … like yourself, right?”
Forrester then debated with plaintiff attorneys over whether it would be ethical and useful to determine the rate of disease in the exposed western Anniston population and how it should be done.
Forrester, a clinician at Athens Regional Medical Center, said he could not say conclusively whether Anniston would benefit from a comprehensive health study. He said people might report false information because they wanted to sue the company.
Regarding the potential significance of a research study, he said, “I don’t know enough about the background on that … But there could be factors with this group that would make it amenable to study.”
Solutia’s environmental officer, however, testified that he didn’t think a research study could be performed accurately in western Anniston.
Consent decree – a flawed deal
The agreement reached between EPA, the Department of Justice, Solutia and Pharmacia has been criticized in and out of the courtroom.
Much of the criticism has centered on the timing of the agreement, which may or may not eliminate the possibility of a more stringent cleanup mandate in state court.
Solutia’s Dr. Robert Kaley testified that he did not recall who among the negotiators proposed removing ADEM’s authority for overseeing cleanups at the plant site, landfills and waterways, but he acknowledged that that the change was not made until the PCB trial was underway.
Plaintiff attorneys also blasted the deal because of significant changes made during the closed-door negotiations — for example, EPA originally proposed that Solutia fund a health study and health programs in Anniston. Solutia refused to provide the funding, but instead supplied several million for special education. Solutia also asked to do something EPA originally intended to do — a risk assessment for PCB contamination in the Anniston area.
The risk assessment is performed in order to select cleanup standards for contaminated soil and waterways. Under the proposed federal agreement, Solutia will make cleanup recommendations based on the risk assessment. Ultimately, EPA will decide the level for acceptable risk — it must lie between one in 10,000 or one in 1,000,000 additional deaths due to hazardous exposure. EPA also decides the cleanup standards.
Company officials testified that Solutia should conduct the risk assessment because it would make the transmission of data from the investigation to the cleanup process more “efficient.”
Laird asked Solutia experts why the consent decree’s stipulated remedial investigation/feasibility study (typically a two-year process to characterize the extent of contamination) was necessary if many of the properties have already been sampled for PCBs.
“Explain to me, please, how the public is being treated unfairly by being given at an earlier date, say, two months from now, rather than two years or longer … a cleanup or remediation goal overall for the residential properties in this case,” Laird asked.
Solutia’s expert, Dr. John Woodyard of Chicago, said it was rather EPA and Solutia that would be treated unfairly.
Laird asked how Solutia would be treated unfairly by doing the work in two months rather than two years, and Woodyard responded, “I think it’s a fair process, providing everyone gets a chance to weigh in on all the various assumptions and so forth in the risk assessment process.”
After further questioning, Woodyard agreed that he could probably sit down and do a risk assessment for the residential areas rather quickly. He said that cleanup standards have ranged between one and 10 parts per million for soil.
Solutia experts said a risk assessment could be performed quickly for the waterways, where much data has already been collected, but not the Choccolocco Creek floodplain, for which Solutia has obtained much less data.
Progress on cleanup so far
Plaintiff attorneys have leveled many accusations about how EPA, ADEM and Solutia have handled PCB contamination during the past two decades.
During the hearings, plaintiff attorney Donald Stewart accused Solutia of illegally creating mini-landfills by removing PCBs from contaminated areas and tucking the low-level PCB dirt under parking lots in Oxford and under geo-textile fabric on Solutia-owned acreage on the north and east sides of the former Monsanto plant.
Solutia and regulators from ADEM testified that those actions were allowable under interim measures in Solutia’s permit. They testified that the activities do not qualify as a final cleanup, but that they could eventually be approved as an appropriate final measure.
Stewart also questioned the fairness of Solutia removing PCB-contaminated fill dirt from residential properties without even setting a cleanup level. The fill dirt had been acquired from the Quintard Mall expansion. He said Solutia is not giving the PCB litigants and other property owners the same treatment.
Plaintiff attorneys also questioned why the agencies haven’t required Solutia to analyze for dioxins and furans, particularly the latter because of its known association with PCB manufacturing. Some of the plaintiffs in the PCB case have tested positive for elevated levels of dioxins and furans.
Dioxins and furans are produced by numerous methods of combustion, and at certain levels are known to be extremely toxic. In some industrial accidents and a well-known poisoning epidemic in Japan, people have become very sick due to contaminated PCB mixtures.
Solutia experts said they have no reason to believe that there are significant levels of dioxin or furan contamination from the Anniston plant, based on their knowledge of Monsanto’s manufacturing process. They acknowledged that there was a tiny amount of furan contamination in Monsanto’s PCB products, but they claimed that it would be negligible in the soil contamination.
Another subject of debate was Monsanto’s two former landfills, one of which contains an estimated 10 million pounds of PCB-contaminated waste. Both were constructed and used before the advent of landfill regulations.
Plaintiff attorneys asked why Solutia has not been required to conduct a die-trace study, to determine where the groundwater flows below the landfills.
They pressed defense witnesses on what sort of geological features underlie the landfills, and whether there might be an unidentified source of groundwater contamination. They noted that some areas of the landfills used to be iron ore pits, which may leak to the water table.
A Solutia-retained environmental engineer acknowledged that there has been no investigation of the geological features under the landfills.
He testified, however that he believes a die-trace study wouldn’t yield any important results, and that based on groundwater well monitoring data, he thinks the landfills are not leaking PCBs into the water table.
Hurry up and wait
At the outset, Laird said he wanted to expedite the hearings, and perhaps the PCB cleanup itself. “We’ve got a long way to go but maybe we should have already been there,” he told the attorneys in early March.
However, the hearings have been plagued with “stops and starts,” attorneys said.
In spite of the delays, the acrimony and Solutia attorneys’ regular objections to Laird rulings, a certain boot-camp atmosphere has pervaded the hearings. Some of them have lasted almost to midnight and involved hours of testimony on PCB data collection and the multi-regulatory actions at the site since 1993.
The cleanup phase of the trial began seven weeks ago and ended at 3 p.m. Friday, resulting in 3,000 pages of trial transcripts, as compared to the total count of 10,000 pages of transcript in the trial, which began in early January.
Meanwhile, the paper-filled boxes lining the southern wall of Laird’s courtroom grew into a massive heap as Solutia attorneys entered evidence to prove that their cleanup efforts in Anniston have been appropriate so far.
Attorneys began removing those boxes Friday afternoon, when testimony concluded.
It now remains to be seen how Laird will rule on Solutia’s motions to get him to disqualify himself and bar his effort for cleanup.
Meanwhile, the trial in Gadsden is gradually moving to yet another pivotal event — as early as next month, several hundred plaintiffs will blame the chemical company of poisoning their health with PCBs.
Also see:
Legal storm brews over PCB issues
