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EWG Letter to Whitman, 18 June 03

Monsanto in Alabama: EWG Letter to Whitman, 18 June 03

June 18, 2003

June 18, 2003

The Honorable Christine Todd Whitman
Administrator
Environmental Protection Agency
1200 Pennsylvania Ave., N.W.
Washington, DC 20460

Via fax and certified mail

Dear Governor Whitman:

On the eve of your departure as EPA Administrator, important questions remain unanswered concerning the genesis of the controversial and highly unusual "partial" consent decree between the Agency and the Monsanto company to deal with 70 years of PCB pollution in Anniston, Alabama. As you know, the consent decree awaits final approval. Its terms will largely determine the scope and thoroughness of the cleanup in the community, an important goal of Anniston's grassroots organization, Community Against Pollution (CAP). It will profoundly and forever affect the lives of the people who live in Anniston, who have been betrayed and abused by Monsanto, and by officials at every level of government, for decades. We feel betrayed yet again by a consent decree developed without our knowledge or involvement. Now we want to know, from you, how and why an EPA cleanup agreement so favorable to Monsanto came about precisely when a state court was poised to impose much more stringent, costly, and entirely appropriate remedies on the company.

You may not be aware that the Environmental Working Group (EWG) has sought for more than 15 months to understand how the consent decree was written, and by whom. EWG has asked which Monsanto officials had any role in negotiating or drafting it with federal officials, specifically at EPA headquarters. These inquiries, under the Federal Freedom of Information Act, have been met with a pattern of resistance and non-answers from Administration staff members, including those in your office.

Among the few documents obtained through the FOIA requests was a heavily-redacted memo indicating that you requested and received a 45-minute "briefing" on the Anniston situation just days after a state jury found Monsanto liable on all counts, including negligence, wantonness, nuisance, suppression of the truth, trespass and outrage. Outrage is a rarely successful tort claim that under Alabama law describes conduct "so outrageous in character and extreme in degree as to go beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in civilized society." Court documents show that days after your meeting, a key change was made to the Anniston consent decree that was highly favorable to Monsanto. The very existence of the consent decree became public only after a Monsanto employee admitted as much under oath in an Alabama courtroom later that month.

The topics of discussion for your meeting were redacted from the memo we obtained. We assume that the meeting covered the consent decree discussions that were then underway because the document indicates that an unnamed Department of Justice official was present. We cannot help but wonder, given the presence of a Justice Department official, if the March 6 "briefing" was more of a decision-making meeting, not just an update for you on the situation as it had unfolded to that point. The change made to the consent decree subsequent to your meeting was a major one, and it was highly unusual.

The change essentially blocked a nearly certain state-ordered cleanup of the actual pollution source and substituted not a federal cleanup, but a federal study. Historically, the Agency has pre-empted state toxic waste cleanup authority in order to catalyze action in cases where state regulators were proving sluggish or taking no action. The change made to the Anniston consent decree, so soon after your briefing, essentially traded pending state action for federal inaction regarding one of the most polluted places - and some of the most polluted people - on Earth. The nature of the change made sometime after your March 6, 2002 briefing also stands in direct contrast to the Administration"s oft-stated philosophy of further devolving execution and enforcement of federal anti-pollution laws to state governments.

You and other EPA officials have repeatedly stated that the Anniston consent decree was the product of career, regional office staff. In our view, that characterization of the decision-making does not square with the fact that the consent degree changed so significantly shortly after the joint EPA-DOJ meeting you had requested. Moreover, in trial testimony that very month, a key environmental official with Solutia (formerly Monsanto) stated he had been to a number of meetings in Washington during negotiations on the consent decree.

More than likely, there is a reasonable explanation for this confusing sequence of events and unanswered questions. The people of Anniston have a right to know exactly how this consent decree was developed, and by whom. Despite our best efforts, the genesis of the Anniston consent decree remains unclear - and troubling.

Attached is a summary of the efforts EWG has made to get to the bottom of this matter. The summary and other relevant documents are also posted at www.ewg.org.

Given how vigorously you and your Agency have defended the consent decree, we do not understand why EPA and other Administration offices have been unwilling to give a full accounting of how this consent decree and this key change were produced.

We urge you to provide to the public:

  • a detailed explanation of who decided the immediate, post-meeting change and other key parts of the Anniston consent decree;
  • what was discussed and decided at your March 6, 2002 meeting, and who made the respective decisions; and,
  • a complete record of which Monsanto representatives communicated with which Administration officials in the negotiation process of the Anniston consent decree.

Thank you in advance for your consideration.

Sincerely,

David Baker
Executive Director
Community Against Pollution
1521 Cobb Avenue
Anniston, Alabama 36201
(256) 236-6773
info@communityagainstpollution.org

Kenneth A. Cook
President
Environmental Working Group
1436 U Street, NW
Suite 100
Washington, DC 20009
(202) 667-6982
ken@ewg.org

cc: Senator Barbara Mikulski; Senator Richard Shelby; Patricia K. Hirsch, Assistant General Counsel, Finance and Operations Law Office; Ray E. Spears, Office of the Administrator, Deputy Chief of Staff