Wednesday, June 18, 2003

Monsanto in Alabama

How did Monsanto avoid a pollution crackdown in Alabama?

Documents obtained by the Environmental Working Group (EWG) through Freedom of Information Act (FOIA) requests and a review of court records show that a federal cleanup agreement between Monsanto and the US Environmental Protection Agency (EPA) changed significantly in Monsanto’s favor just seven days after Administrator Christine Todd Whitman received a “briefing” she had requested on the company’s PCB pollution in Anniston, Alabama.

The Anniston “partial” consent decree would govern how the community would be cleaned up after decades of ongoing pollution from Monsanto’s former PCB operations at its chemical plant in this small Alabama community. The term “partial” indicates that the consent decree merely seeks a study of the contamination, not an actual cleanup. This term is rarely, if ever, used by EPA, another reason why this agreement is so unusual. One leading scientist has labeled Anniston “the most contaminated place on earth.”

The Anniston cleanup agreement is pending final approval in federal court, which could come at any time.

Anniston's local citizen group, Community Against Pollution and Environmental Working Group have written a letter to Administrator Whitman once again seeking to learn the details of the deal the Agency cut with Monsanto.

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 Administrator Whitman’s office.

Among the few documents obtained through the FOIA requests was a heavily-redacted memo indicating that Administrator Whitman requested and received a 45-minute “briefing” on the Anniston situation 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 within a week after Whitman’s 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 Whitman’s meeting were redacted from the memo EWG obtained. EWG assumes 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. Given the presence of a Justice Department official, it appears that the March 6 “briefing” was more of a decision-making meeting, not just an update for Whitman on the situation as it had unfolded to that point. The change made to the consent decree subsequent to Whitman’s 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 Whitman’s meeting, 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 Whitman’s March 6, 2002 meeting 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.

Whitman and other EPA officials have repeatedly stated that the Anniston consent decree was the product of career, regional office staff. 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 Whitman 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.

EWG Letter to Whitman, 18 June 03

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
[email protected]

Kenneth A. Cook
President
Environmental Working Group
1436 U Street, NW
Suite 100
Washington, DC 20009
(202) 667-6982
[email protected]

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

Full Story

After decades of polluting the people of Anniston, Alabama with some of the highest levels of carcinogenic PCBs on Earth, Monsanto was losing a large, citizen lawsuit in state court — one in a series of suits aimed at the company over its conduct. The state judge in the case seemed all but certain to order a far-reaching cleanup likely to cost the company several hundred million dollars.

However, a “partial” consent decree cleanup agreement had been quietly negotiated between the US EPA and Monsanto for months without the involvement or knowledge of the contaminated community. The term “partial” indicates that the consent decree merely seeks a study of the contamination, not an actual cleanup. This term is rarely, if ever, used by EPA, another reason why this agreement is so unusual. The existence of the consent decree became public only when a company witness under cross-examination in the ongoing Anniston trial admitted efforts to negotiate a cleanup deal had been long underway. Without this private lawsuit brought by Anniston residents, the public would not have known about EPA's secret dealings with Monsanto.

Consent agreements for pollution cleanups are not uncommon, but what created the ensuing furor was that this agreement effectively replaced a state-ordered cleanup with a federally ordered study of the problem, with no assurances of a long-range comprehensive cleanup or health assessment for community members.

The news media, a Senate subcommittee (and EWG, for the last 15 months) pursued the immediate questions of origin and authorship of the Anniston consent decree. Whitman’s agency consistently responded by portraying the agreement as a routine product of regional office career staff. The Agency declined a request by Senator Barbara Mikulski (D-MD) and Richard Shelby (R-AL) that Whitman appear before their VA/HUD-Independent Agencies Appropriations Subcommittee to answer precisely such questions. The Agency instead offered to the Committee — and to 60 Minutes Correspondent Steve Croft — Region Four Deputy Administrator Stan Meiburg, who repeated the claim that the decree was produced by mid-level staff. [View document]

During their April 19, 2002 subcommittee hearing, Mikulski and Shelby demanded to know why Whitman had not appeared before them and expressed skepticism about Meiburg’s assertion. Mikulski followed up with a letter to Whitman, to which the Administrator, while saying she was kept in the loop, repeatedly played up the principal role of EPA regional staff in an effort to allay concerns that the agreement had been improperly influenced [bolding added]:

  • “As is typical with Superfund enforcement actions, EPA regional attorneys, technical staff and Department of Justice attorneys applied standard Superfund policies in negotiating the recently lodged Anniston Consent Decree. Routinely at Superfund sites, EPA regional attorneys and technical staff draft and negotiate agreements with responsible parties to have them undertaken necessary response actions with EPA oversight. EPA front-line and mid-level regional management review, comment and approve Superfund agreements. The authority to approve the commencement of a Remedial Investigation and Feasibility Study (RI/FS), like the one embodied in the lodged Anniston Consent Decree, is officially delegated to the regional branch chief level. Further, given the importance of the Anniston site to the Agency, Deputy Regional Administrator Stan Meiburg participated in the review, and ultimately approved the Consent Decree.
  • “In Regional 4, Deputy Regional Administrator Stan Meiburg approved all major decisions regarding the Consent Decree. Dr. Meiburg was also the Acting Regional Administrator from January 2001 to January 2002, when much of the Consent Decree was negotiated.”
  • “Both the signing and referral processes followed established procedures and were handled in the Anniston case in much the same way as in other Superfund consent decrees. The only difference was that in the Anniston Case, the Deputy Regional Administrator signed the referral of the Consent Decree to the Department of Justice because the Regional Administrator is recused.”

EWG has consistently pressed for a full accounting of the process of the Anniston consent decree negotiations to rule out even the appearance of any conflicts of interest. Officials in decision-making chains at EPA and other parts of the Administration have links to Monsanto and other PCB polluters with a long-range interest in the outcome.

For 15 months, EWG has pursued the simple question of who met with whom to produce the Anniston consent decree — and why key changes were made as the agreement evolved. These repeated efforts have been largely rebuffed, but EWG did receive documentation showing that days after a state jury found Monsanto liable on all counts, Administrator Whitman convened a previously undisclosed “briefing” on the topic. Within a week after this meeting, the agreement significantly changed in Monsanto’s favor. This meeting memo was disclosed after EWG appealed the denial of its initial FOIA request. The heavily-redacted memo evidences a lengthy, 45-minute meeting requested by Administrator Whitman. The 'Key Issues' and attached '2-pg Briefing Document' sections of the memo were redacted entirely. Notably, an anonymous representative from the Department of Justice attended the meeting, making it probable that the meeting was more than just a background “briefing” for Whitman with no substantive discussion of what should be in the Anniston consent decree.

The very fact that a consent decree was even in the works came to light through private litigation brought by Anniston residents, not through FOIA. During a dramatic cross-examination in the courtroom, a Monsanto employee admitted that Monsanto had been in settlement discussions with EPA for months, also testifying that he had attended several meetings in Washington. This was the first time that the public learned that EPA and Monsanto had reached an agreement and that there were competing drafts of the consent decree. [Excerpt | Full Document]

As made clear in the Alabama courtroom, the change in the consent decree’s language altered the definition of the pollution "site" that Monsanto would have to cleanup under orders of the State. The change stripped the State of its authority over the cleanup of the plant site itself and the surrounding waterways, which the State had been managing under its RCRA authority in a prior agreement with EPA. By changing the definition of the site, EPA took control from the state entirely, deciding to work directly and only with Monsanto in designing and implementing the cleanup.

This change meant that Monsanto could use, and, in fact, did use, the Anniston consent decree as the basis for a motion to dismiss the state court's authority to order a cleanup of the Anniston site. The potential cleanup costs are estimated to run as high as $500 million. The state court judge has stayed Monsanto’s motion to dismiss until the federal judge decides whether to approve the consent decree.

It was a potentially lucrative change for Monsanto, and the effective swapping of a state-court-ordered cleanup for the sake of a federal study is highly unusual, if not without precedent. This one change could save the company hundreds of millions of dollars in cleanup costs and potential damage to stock analysts’ valuations of the company and its spin-offs.

Administrator Whitman said in her letter to Senator Mikulski that she had “been briefed” on the situation. But the Anniston consent decree has repeatedly been described as a product of EPA regional staff at Meiburg’s level and lower.

One thing is clear: the timing of this highly beneficial change for Monsanto raises several questions: Was the Anniston consent decree revised in response to policy decisions in Washington? Who made that change happen? Did Monsanto officials or lobbyists exert undue influence on the process in Washington at the expense of the people and community of Anniston?

Timeline of Events

 

2001
January 2

 

EPA letter [View document] to Monsanto details the Agency’s wish list for action in Anniston, marking the beginning of a year-long negotiation process between EPA and the company. No representatives from the Anniston community were invited to participate in these secretive negotiations.

 

2002

January 1

Story breaks about Monsanto’s PCB history in Anniston

January 9

Trial begins in Abernathy v. Monsanto CV-2001-832 (now called Bowie v. Monsanto), Etowah County Circuit Court

February 22

Jury returns verdict against Monsanto establishing liability on all six 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.”

February 25

The State of Alabama and four other municipalities join the Bowie v. Monsanto trial as plaintiffs.

March 6

Administrator Whitman receives a scheduled 45-minute briefing from EPA staff about “the Anniston PCB Site.” The scheduling memo states under “Genesis”: “You [Whitman] requested this briefing.” The date and nature of, and reason for, Whitman’s request, have not been made public. Eleven (11) EPA employees are listed as attendees, including Region IV staff publicly identified as involved in the development of the Anniston Consent Decree, and an unnamed “DOJ representative.” The “Overview” of the meeting says only: “Provide background information on the Anniston PCB Site.” Attachments listed for the scheduling memo include “Briefing document,” “Congressional inquiry,” and “Recent articles.”

March 13

Draft Consent Decree changes dramatically from earlier versions. US EPA assumes control from the State at the site of the cleanup and the site definition changes.

March 15

 

During cross examination in the Bowie v. Monsanto trial, a Monsanto witness admits to the existence of the partial consent decree that the company had been working out with EPA.

 

March 25

Anniston Partial Consent Decree is formally announced with a joint press release from the Washington Offices of DOJ and EPA.

April 4

Partial Consent Decree published in the Federal Register.

April 5

EWG files its first FOIA asking EPA for records of meetings or other communications with Monsanto and the other defendants in the state trial.

April 8

Marianne Horinko, EPA Assistant Administrator of the Office of Solid Waste and Emergency Response, said that the reason the Anniston site was not listed on the National Priorities List (NPL) as part of the pollution agreement was because "the PRP [Monsanto] didn't want it." [View document]

April 19

Senators Barbara Mikulski (D-MD) and Richard Shelby (R-AL) hold a hearing in the VA/HUD Appropriations Subcommittee (which funds EPA) seeking information about how the Anniston Partial Consent Decree was constructed and negotiated.

April 19

Senator Mikulski Letter to EPA Administrator Whitman asking for details about the construction and negotiation of the Anniston Partial Consent Decree.

May 29

Whitman Response Letter to Mikulski asserts that the Consent Decree was put together following “typical” and “routine” Superfund procedure. Whitman asserts that “EPA regional attorneys, technical staff and Department of Justice attorneys applied standard Superfund policies in negotiating the recently lodged Anniston Consent Decree. Routinely at Superfund sites, EPA regional attorneys and technical staff draft and negotiate agreements with responsible parties to have them undertake necessary response actions with EPA oversight. EPA front-line and mid-level regional management review, comment, and approve Superfund agreements. The authority to approve the commencement of a Remedial Investigation and Feasibility Study (RI/FS), like the one embodied in the lodged Anniston Consent Decree, is officially delegated to the regional branch chief level.”

June 3

End of the Public Comment Period for the Partial Consent Decree.

October 28

Revised Partial Consent Decree published by EPA.

December

Revised Partial Consent Decree lodged in federal district court in the Northern District of Alabama.

2003

January 17

DOJ attorney calls Janet MacGillivray of the nonprofit environmental organization Riverkeeper and tries to dissuade her from testifying at the Anniston hearing. [View document]

January 21

Hearing held in Anniston, Alabama about the approval of the Anniston Consent Decree.

January 27

Federal court hearing held in Northern District of Alabama concerning the Revised Partial Consent Decree.

May 15

Administrator Whitman awards DOJ attorney who pressured Ms. MacGillivray not to testify and the entire Region IV PCB team the "Gold Medal Award" for outstanding service to EPA. [View document]

 

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.
  • 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].

Before and After Whitman's Meeting

A crucial section of the Partial Consent Decree changed significantly just one week after EPA Administrator Whitman received a briefing from her staff on the Anniston PCB situation.

With this change, EPA usurped control from the State of Alabama, taking charge of the entire scope of PCB contamination in Anniston. Monsanto's defense attorneys used this Partial Consent Decree in an attempt to thwart a much tougher cleanup being ordered by the State Court.

Before the meeting

[excerpt of partial consent decree before Whitman's briefing]

1/22/02 — Draft Partial Consent Decree definition of "site" on page 7 indicates that EPA will have control of all the areas "exclusive of the operating facility." The "operating facility" is governed by the state under RCRA permitting authority. With the Abernathy v. Monsanto trial just getting underway, Monsanto’s outside counsel writes EPA explaining that resolving the Anniston issue with EPA is a "top priority" for Solutia/Monsanto. [View document]

After the meeting

[excerpt of partial consent decree after Whitman's briefing]

3/13/02 — Partial Consent Decree definition of "site" on page 7 changes to include the operating facility under EPA’s jurisdiction: "The Site includes, but is not limited to, the area covered by the RCRA permit." (Whitman briefing was March 6, 2002.) [Excerpt | Full document]

Conflicts of Interest

Potential Conflicts of Interest on the Anniston Issue in the Bush Administration

Larry Thompson, Deputy Attorney General
Former General Counsel to Monsanto.
Response of “no records” to EWG FOIA regarding meetings with Monsanto lobbyists before Consent Decree signed, took approximately ten months to receive FOIA response.

James Connaughten, CEQ Chair
Former Chief Lobbyist of GE during the Hudson River PCB Clean Up Negotiations. Response to EWG FOIA did not include communications between Connaughten and Monsanto lobbyists regarding Anniston. Included briefing paper EPA gave Senator Shelby.

Jimmy Palmer, Region IV Administrator
Former attorney for a lead foundry that polluted Anniston; had to recuse himself from considering the Consent Decree.

Linda Fisher, Deputy Administrator (EPA)
Former Chief Lobbyist for Monsanto.
After comment period, provided partial response to initial FOIA (6/18/2002); after two phone calls and three emails, finally received recusal documents regarding Fisher. Recusal was in February 2002, not clear whether the recusal occurred before or after Consent Decree negotiations began at EPA HQ. FOIA appeal denied in part and granted in part on 1/2/03, relating to documents with meetings between Monsanto officials and EPA Administrator staff.

John Ashcroft, Attorney General
As U.S. Senator from Missouri, received more money from St. Louis-based Monsanto than any other political candidate in 2000, approx. $50,000 in campaign contributions for his failed Senate Race: Solutia gave him $18,500 (12th largest contributor); Monsanto gave him $24,000. Response of "no records" to EWG FOIA regarding meetings with Monsanto lobbyists before Consent Decree signed, response received approximately ten months after request.

Source Documents

 

Updates

27 JUNE 2003

Former Superfund Attorney Says DOJ Pressured Her Not To Testify

Veteran Superfund attorney Janet MacGillivray came forward June 26 with the story of how a senior Bush Department of Justice (DOJ) official tried to pressure her into not testifying in a federal court that is reviewing a high-stakes pollution cleanup agreement.

MacGillivray, who now works for Riverkeeper, was set to testify that a key EPA official had admitted to her that the cleanup agreement regarding decades of Monsanto’s carcinogenic PCB pollution of Anniston, Alabama lacked a key requirement because “[Monsanto] didn’t want it.” MacGillivray testified in opposition to the DOJ and Monsanto-crafted clean up agreement, which still awaits final approval by the federal court.

 

RELATED DOCUMENTS
Janet MacGillivray’s statement
Transcript of MacGillivray’s testimony
EWG’s letter to Inspectors General

Key Issues: