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Monsanto in Alabama: EWG FOIA History

EWG’s Efforts to Determine Consent Decree Authorship and Monsanto’s Influence

During the past 15 months, Environmental Working Group (EWG) has filed a series of Freedom of Information Act (FOIA) requests to determine Monsanto Company’s influence in shaping a much-criticized, highly unusual EPA-approved “Partial Consent Decree” cleanup agreement regarding decades of PCB pollution of Anniston, Alabama and its residents.

In April 2002, EWG requested information regarding what meetings and communications occurred between Monsanto lobbyists and Administration officials before the Anniston “Partial Consent Decree” was announced. The Administration has consciously delayed, if not resisted, our attempts to uncover this information.

EWG followed all appropriate channels to try to gain access to this public information, but the Administration has not provided any relevant information. The EPA FOIA appeal denial letter did not indicate an estimate of the amount of denied information, nor did it explicitly state that there were no records with respect to the requested information as required by the Department of Justice FOIA regulations [View documents: EWG appeal | EPA FOIA Response]. The few documents that were disclosed to EWG do not involve meetings or correspondence with EPA and Monsanto officials. The records provided include: 1) a background paper that Region IV EPA sent to Senator Richard Shelby (R-AL) and an internal EPA background paper with a redacted "background" section; 2) e-mails about Stan Meiburg’s testimony before the Senate; and 3) a redacted memorandum showing that Administrator Whitman requested a briefing on the Anniston situation days before the EPA decided to usurp jurisdiction from the State of Alabama.

Specifically, EPA did not disclose documents that reflected dates of meetings, minutes of meetings, or e-mails with Administrator Whitman’s office, EPA staff and Monsanto lobbyists. EWG filed four separate FOIA requests to 1) OMB; 2) CEQ; 3) DOJ and 4) EPA requesting information about the role Monsanto lobbyists played in the making of the Anniston “partial consent decree.” None of the agencies provided information about communications or correspondence between Monsanto and public officials. Curiously, only DOJ stated that “no records” of such meetings or correspondence existed.

Furthermore, with respect to the request to EPA, a general "deliberative process" exemption was claimed, but it was not clear for what requested items and what records. EWG specifically requested documents that evidence meetings held between EPA Office of the Administrator staff and Monsanto (a.k.a Solutia, Pharmacia) officials, including dates of meetings, lists of attendees, agendas, minutes of meetings and correspondence including letters, notes, e-mails, and memoranda involving communications with EPA officials and Monsanto lobbyists.

None of these requested records about communications with Monsanto lobbyists pertain to drafts of deliberative documents or any intra-agency correspondence material that is exempt under FOIA. In fact, the records sought should reflect meetings with a non-governmental party and therefore would not fall under this FOIA exemption. If there were no meetings between the Office of the Administrator and Monsanto from January 20, 2001 to the present about Anniston, Alabama, EWG repeatedly requested that the Agency clarify that there are "no records." Yet, no one at the EPA has stated that no records exist or that no meetings or no correspondence with Monsanto lobbyists took place during the creation of the Partial Consent Decree.

FOIA Request and Response Timeline — for EPA only

1. By electronic mail dated April 5, 2002, EWG requested the following documents from EPA pursuant to FOIA [View document]:

• Dates of meetings, lists of attendees, agendas, minutes of meetings and correspondence, including letters, notes, emails, and memoranda, involving communications with EPA Administrator Christine Todd Whitman, Jessica Furey, and/or Eileen McGinnis and representatives or lobbyists from Monsanto, Inc., Solutia, Inc., or Pharmacia, Inc. (hereinafter collectively referred to as "Monsanto") from January 20, 2001 to the present about Anniston, Alabama.
• Dates of meetings, agendas, lists of attendees, and minutes of meetings among Jessica Furey, Eileen McGinnis, and/ or any other official in the Office of the Administrator and Monsanto representatives or lobbyists from January 20, 2001 to the present about Anniston, Alabama.
• Dates of meetings, agendas, lists of attendees, minutes of meetings, and all correspondence, including letters, notes, emails, and memoranda, concerning Deputy Administrator Linda Fisher’s decision to recuse herself from considering the Anniston, Alabama consent decree from January 20, 2001 to the present.
• All memoranda from the EPA Office of General Counsel to EPA Office of the Administrator involving meetings with Monsanto lobbyists or representatives about Anniston, Alabama from January 20, 2001 to the present.
• All dates of meetings, lists of attendees, minutes of meetings, and correspondence, including letters, notes, emails, and memoranda, among EPA Administrator Christine Todd Whitman, Jessica Furey, Eileen McGinnis, and the Office of the Administrator about Anniston, Alabama from January 20, 2001 to the present.

By facsimile dated April 5, 2002, the EPA denied EWG’s request for a fee waiver, despite the fact that the EWG had outlined why it should receive a fee waiver in three detailed single-spaced pages.

2. By facsimile dated April 5, 2002, EWG immediately responded to EPA to express its concerns that the denial of the fee waiver reflected an arbitrary and capricious decision before actually reviewing the FOIA request, or worse, an attempt by the Administration to delay responding to this FOIA request [View document].

• By facsimile dated April 9, 2002, EPA granted EWG’s request for a fee waiver [View document].
• On April 19, 2002, the Senate VA-HUD Subcommittee on Appropriations held a hearing on EPA’s approval of the "Partial Consent Decree" with Monsanto regarding the Anniston, Alabama PCB site.
• On Friday, May 3, 2002, EPA’s FOIA office sought an extension of the statutory 20-day FOIA response period. The response was due by May 17, 2002 [View document].

3. On May 20, 2002, EWG left messages with EPA FOIA offices to determine the status of the request. The calls were not returned.

• EPA did not seek any further extensions or notify EWG of any additional delays.
• The public comment period to the Anniston "Partial Consent Decree" ended on June 3, 2002.
• On June 26, 2002, three months after the initial FOIA was filed, (and three weeks after the Anniston Consent Decree comments were due), EWG received a FOIA response from EPA in a letter dated June 18, 2002 by Mr. Ray E. Spears, Deputy Chief of Staff for the EPA’s Office of the Administrator [View document].
• The June 26, 2002 FOIA response enclosed two records: 1) a background paper on Anniston with redacted sections and 2) a chronology of the EPA’s involvement with the Anniston PCB Site that was sent to Senator Shelby and is available on his website. EPA claimed that all other responsive documents were exempt from disclosure pursuant to the "deliberative process" exemption of the FOIA, 5 U.S.C. § 552 (b)(5).

4. On July 10, 2002, EWG’s General Counsel Heather White sent an email to Ms. Linda Fisher, Deputy Administrator for EPA, to ask whether Ms. Fisher recused herself from considering the Anniston consent decree and whether EPA’s troubling FOIA response meant that there were no records to reflect her recusal. This email was followed up by a telephone call to Ms. Fisher’s office on July 10 [View document].

• EWG’s General Counsel Heather White left a voicemail with Ms. Fisher’s office on Thursday, July 12, 2002. Later that day, the Deputy Administrator’s Chief of Staff Claudia McMurray left a voicemail for Ms. White. Ms. McMurray encouraged EWG to file a FOIA appeal. Ms. McMurray also stated that Ms. Fisher had a general recusal, but not a specific recusal for Anniston. She said that since EWG’s FOIA did not seek a general recusal, it was not included in the request. Ms. McMurray continued by stating that Deputy Chief of Staff Ray E. Spears would contact EWG. On July 18, 2002, Ray Spears and Heather White spoke on the phone. Mr. Spears indicated that he would provide a written response to EWG’s question and would disclose whether any records existed that reflected meetings with Monsanto lobbyists and the Office of the Administrator [View document].

5. By letter dated July 26, 2002, after failure to receive a timely response from the Office of the Administrator or the Deputy Administrator, EWG appealed the decision of denial of its April 5, 2002 FOIA request [View document].

• On July 31, 2002, EPA’s FOIA office acknowledged receipt of EWG’s FOIA Appeal.
• On July 31, 2002, EPA disclosed three records relating to EWG’s April 5, 2002 FOIA request by letter dated July 24, 2002. The documents pertained to Deputy Administrator Linda Fisher’s general recusal from Monsanto matters, but claimed all other responsive documents were being withheld because of Exemption 5 of the FOIA, 5 U.S.C. § 552 (b)(5) [View document].
• On August 6, 2002, EPA’s Office of General Counsel acknowledged receipt of the appeal [View document].

6. By letter dated October 18, 2002, EWG sent a letter to EPA’s FOIA Office and sought information of the status of its pending appeal. In this letter, EWG offered to negotiate with EPA to determine the scope of the FOIA requests and to expedite the FOIA process. EWG received no response from EPA [View document].

7. On November 12, 2002, Arianne Callender, Senior Attorney with EWG, called the EPA FOIA office to determine the status of EWG’s FOIA Appeal. EPA’s FOIA Officer responded by stating that the appeal had not been assigned to an attorney, despite the fact that the Deputy Chief of Staff of the Administrator initially responded to the FOIA and the Deputy Chief of Staff of the Administrator was copied on the appeal.

8. On November 20, 2002, Ms. Callender contacted EPA’s FOIA office to determine the status of EWG’s appeal, which was filed in July 2002. The appeal had not been assigned to an attorney, despite notice of its receipt in the EPA’s Office of General Counsel on August 6, 2002.

• By email dated December 3, 2002, the EPA Office of General Counsel stated that the appeal had been assigned to an attorney [View document].
• By letter dated January 2, 2003, six months after the FOIA appeal was filed and well past the twenty working day statutory deadline, EPA denied in part and granted in part EWG’s FOIA appeal. EPA disclosed one document relating to a briefing of EPA Administrator Christine Todd Whitman and one email without attachments relating to the testimony of EPA Region IV Deputy Administrator Stan Meiburg. With respect to the denied records, EPA claimed that the records were exempt from disclosure pursuant to Exemption 5 of the FOIA, 5 U.S.C. § 552 (b)(5). EPA failed to assert a “no records” claim, despite EWG’s explicit request to clarify whether records existed to reflect communications between Monsanto and EPA officials [View document].