[Senate Hearing 107-637]
[From the U.S. Government Publishing Office]
S. Hrg. 107-637
PCB CONTAMINATION IN ANNISTON, ALABAMA
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HEARING
before a
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
SPECIAL HEARING
APRIL, 19, 2002--ANNISTON, ALABAMA
__________
Printed for the use of the Committee on Appropriations
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
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COMMITTEE ON APPROPRIATIONS
ROBERT C. BYRD, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii TED STEVENS, Alaska
ERNEST F. HOLLINGS, South Carolina THAD COCHRAN, Mississippi
PATRICK J. LEAHY, Vermont ARLEN SPECTER, Pennsylvania
TOM HARKIN, Iowa PETE V. DOMENICI, New Mexico
BARBARA A. MIKULSKI, Maryland CHRISTOPHER S. BOND, Missouri
HARRY REID, Nevada MITCH McCONNELL, Kentucky
HERB KOHL, Wisconsin CONRAD BURNS, Montana
PATTY MURRAY, Washington RICHARD C. SHELBY, Alabama
BYRON L. DORGAN, North Dakota JUDD GREGG, New Hampshire
DIANNE FEINSTEIN, California ROBERT F. BENNETT, Utah
RICHARD J. DURBIN, Illinois BEN NIGHTHORSE CAMPBELL, Colorado
TIM JOHNSON, South Dakota LARRY CRAIG, Idaho
MARY L. LANDRIEU, Louisiana KAY BAILEY HUTCHISON, Texas
JACK REED, Rhode Island MIKE DeWINE, Ohio
Terrence E. Sauvain, Staff Director
Charles Kieffer, Deputy Staff Director
Steven J. Cortese, Minority Staff Director
Lisa Sutherland, Minority Deputy Staff Director
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Subcommittee on VA, HUD, and Independent Agencies
BARBARA A. MIKULSKI, Maryland, Chairman
PATRICK J. LEAHY, Vermont CHRISTOPHER S. BOND, Missouri
TOM HARKIN, Iowa CONRAD BURNS, Montana
ROBERT C. BYRD, West Virginia RICHARD C. SHELBY, Alabama
HERB KOHL, Wisconsin LARRY CRAIG, Idaho
TIM JOHNSON, South Dakota PETE V. DOMENICI, New Mexico
ERNEST F. HOLLINGS, South Carolina MIKE DeWINE, Ohio
TED STEVENS, Alaska (ex officio)
Professional Staff
Paul Carliner
Gabriel A. Batkin
Alexa Sewell
Jon Kamarck (Minority)
Cheh Kim (Minority)
C O N T E N T S
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Page
Statement of A. Stanley Meiburg, Deputy Regional Administrator,
Region 4, Environmental Protection Agency...................... 1
Opening statement of Senator Barbara A. Mikulski................. 1
Statement of Senator Richard C. Shelby........................... 3
Statement of A. Stanley Meiburg.................................. 5
Prepared statement........................................... 6
Statement of Henry Falk, M.D., MPH, Assistant Administrator,
Agency for Toxic Substances and Disease Registry, Department of
Health and Human Services...................................... 11
Prepared statement........................................... 12
Superfund Designation Process.................................... 16
EPA Vs. Corporate Clean up Activities............................ 16
Preventing Further Contamination Episodes........................ 18
Adequacy of Consent Decree....................................... 18
Community Participation.......................................... 19
Testing for PCBs................................................. 19
Comprehensive Health Study....................................... 20
Role of ATSDR.................................................... 20
Recusal of EPA Officials......................................... 21
Author of Consent Decree......................................... 22
Superfund Site Designations...................................... 24
Consent Decree................................................... 25
Staff Involved in the Creation of the Consent Decree............. 26
PCB Levels....................................................... 27
Health Effects of High PCB Levels................................ 28
Timing of EPA Action............................................. 29
Timing on ATSDR Participation.................................... 33
Actions by the Community......................................... 34
Health Studies................................................... 34
Statement of David Baker, Sr., President, Community Against
Pollution (CAP), Anniston, Alabama............................. 37
Prepared statement........................................... 39
Statement of Stephen A. Cobb, Chief, Hazardous Waste Branch,
Alabama Department of Environmental Management................. 44
James Wright, Office of the General Counsel...................... 44
Prepared statement of Stephen A. Cobb............................ 46
Completing Remediation........................................... 48
Actions by the State............................................. 49
Re-Establishing Trust............................................ 49
Superfund Designation............................................ 50
Actions by the State............................................. 53
Citizen Volunteerism............................................. 54
Health Study..................................................... 56
PCB CONTAMINATION IN ANNISTON, ALABAMA
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FRIDAY, APRIL 19, 2002
U.S. Senate,
Subcommittee on VA, HUD, and
Independent Agencies,
Committee on Appropriations,
Washington, DC.
The subcommittee met at 10:02 a.m., in room SD-138, Dirksen
Senate Office Building, Hon. Barbara A. Mikulski (chairman)
presiding.
Present: Senators Mikulski and Shelby.
ENVIRONMENTAL PROTECTION AGENCY
STATEMENT OF A. STANLEY MEIBURG, DEPUTY REGIONAL
ADMINISTRATOR, REGION 4
opening statement of senator barbara a. mikulski
Senator Mikulski. Good morning. The Subcommittee on VA, HUD
Appropriations will come to order.
We are having a special hearing today on the issues related
to the PCB contamination in Anniston, Alabama. This hearing is
being conducted at the request of Senator Richard Shelby, the
senior Senator from Alabama, a member of this subcommittee, and
a member of the Appropriations Committee.
Senator Shelby has expressed a long-time concern about the
situation in Anniston, Alabama, and what is the government's
role, and is government performing its role. He will speak for
himself. I was very interested in cooperating with Senator
Shelby, not only out of Senatorial courtesy, but we do like to
know what is happening on the ground at the regional level, and
we see that Anniston is a good example of, perhaps, lessons
learned on how we could be doing our job more effectively.
Anniston, Alabama is like so many American communities,
working class folks trying to make a living, a once-thriving,
heavy industrial community, just like the people in my own
hometown of Baltimore. And like the people of Baltimore, I am
on their side. These hardworking people are facing an immense
public health crisis after decades of pollution from a PCB
factory, and Anniston's waterways, backyards, and playgrounds
have been polluted.
I am troubled that the Anniston families are also facing a
health crisis, and they seem to have run into a lot of
bureaucracy, paper shuffling, and finger pointing between State
and Federal Government instead of the action to help them. I
want to hear about this. I am going to hear the side of
government. I am going to hear from Annistonians themselves.
I called this hearing today to achieve two goals: One, as
part of our oversight to Federal agencies in this
subcommittee's jurisdiction, EPA and the ATSDR, which stands
for the Agency for Toxic Substances and Disease Registry. These
agencies have been involved and are more responsible for
protecting public health from environmental hazards.
Second, we are going to hear from the residents of Anniston
themselves about their concerns. It appears that this community
has been ignored for a very long period of time, and it is
important that we hear from them directly about what is
happening to them and to their town.
We are not here today to pass judgment on the industry that
polluted, because a jury of its peers has already done that. We
are a Senate committee, not a jury. But we do need to look at
how the people of Anniston can be helped so they can feel safe
in their own community, and of lessons learned, so that it does
not happen again in another community.
American citizens have a right to know about harmful
threats. They have a right to be heard, and they have a right
to be protected. That is the name of the Federal agency charged
with this, the Environmental Protection Agency.
This subcommittee cannot ignore that the highest ranking
EPA official cannot testify today. We welcome the Deputy
Regional Administrator. We know that Administrator Whitman has
another commitment.
Senator Shelby, she has always accommodated our requests to
testify, so we can understand why she cannot be here today.
In no way do we mean to belittle you, Mr. Meiburg. In fact,
we welcome you. But we really need to be hearing from someone
with high-level decision-making authority in an issue of this
magnitude, and such a tremendous impact on the community.
To my surprise, I found that a number of high-ranking EPA
officials have to be recused from this issue because of past
associations with the companies involved. Now, this does not
mean any wrongdoing, but it does cast pretty serious concern
about regional staff ties to the companies they are supposed to
regulate, and I am going to raise that issue in our
conversation.
Now, let us go to Anniston, Alabama. It was the home of a
factory producing PCBs from 1935 to 1971, one of only two PCB
factories in the United States, and we know that PCBs are one
of the most challenging chemicals facing us, and that they were
widely used in the past. PCBs, since 1979, have been linked
with cancer and other devastating health effects.
The people of Anniston have struggled for a long time, and
since 1993, when they first learned about how contaminated
their community has become, they have tried to get help to get
it cleaned up. They went to the State, to the EPA. Nothing was
done.
Finally, 7 years ago, the residents sued the company that
owned the factory for polluting the town, endangering the
health of Anniston, and for an alleged coverup of health risk
and pollution. Only after a guilty verdict did EPA announce a
consent decree with the company. EPA says the timing was
coincidental. I find it surprising.
We are also going to hear today from Mr. David Baker, an
Anniston community activist. And I know that there are other
activists in the audience, and we welcome them.
I am going to ask the representative from EPA some really
very firm questions about why it took repeated requests for
assistance, a citizens' lawsuit, to finally get EPA to act.
I am going to be absolutely clear that nothing said in this
hearing is intended to interfere with ongoing litigation, and I
am going to underline it, and bright-line it.
Senator Shelby, you are an excellent attorney, and I know
you will keep this between the safe lines, because that is the
Judicial Branch, and we are the Legislative Branch.
We understand that the proposed consent decree between EPA
and the industry is in public comment until June 3, so it is
appropriate that we are holding this hearing. As I said, the
people of Anniston have a right to be heard, a right to real
oversight. They deserve action. And the taxpayer deserves
getting value out of the EPA and ATSDR, to be responsive, to be
able to protect the community.
That concludes my opening remarks, and I now turn to you,
Senator Shelby, for anything you wish to say.
statement of senator richard c. shelby
Senator Shelby. Thank you. First of all, Madam Chairman, I
want to thank you for agreeing to hold this hearing today. I
believe it is a very important issue to me and to my
constituents.
In 1976, Congress passed and the President signed into law
the Toxic Substances Control Act. This legislation effectively
banned the manufacture of PCBs in the United States.
During consideration of the original legislation, then
Senator Tunney stated that the bill, and I will quote, ``would
close major gaps in the law that leave the public inadequately
protected against the unregulated introduction of hazardous
chemicals into the environment.''
My guess is that Senator Tunney had no idea that 30 years
later the citizens of Anniston, Alabama, and perhaps other
parts of the country, Madam Chairman, would continue to be
poisoned by those same PCBs that Congress sought to protect
against 30 years ago.
While our country has come a long way in protecting its
citizens against harmful chemicals that pollute the
environment, and have detrimental health effects, the past
continues to haunt us. I am not sure how we remedy that, nor am
I sure that it can be remedied. I am confident that through
enforcement, agencies like EPA, ATSDR, and ADEM, the citizens
of Alabama and across the country should feel secure with the
assumption that everything is being done to protect their
health and well-being.
What I see here today, Madam Chairman, is uncertainty about
that assumption. Knowing what I know about the history of PCBs
in Anniston, Alabama, I do not believe that everything has been
done to protect their health and well-being. In fact, I am
fairly certain that many of these agencies were, at the very
least, complacent in their dealings with Monsanto. This fact is
extremely troubling, given the information that has recently
been discovered with respect to Monsanto's early knowledge
about the dangers of PCBs.
In 1966, Monsanto managers hired a Mississippi State
biologist named Denzel Ferguson, who informed them then that
fish submerged in Snow Creek turned belly up in 10 seconds,
shedding skin as if dumped in boiling water. In 1969, 3 years
later, Monsanto found fish in Choccolocco Creek that were
deformed, and lethargic, and some contained 7,500 times the
legal PCB level. Yes, 7,500 times the legal PCB level.
Given the overwhelming evidence that PCBs were, indeed,
harmful to the fish from surrounding waterways, Monsanto then
informed the Alabama Water Improvement Commission, ADEM's
predecessor, that PCBs were entering Snow Creek again in 1969.
The Alabama Water Improvement Commission took no action. In
fact, they encouraged Monsanto to keep the pollution quiet, due
to a reluctance to inform the public, which would require the
issuance of a fish advisory.
So what we have from the very beginning is a conscious
decision to conceal information from the public, information
that might well have protected numerous Anniston residents from
exposure to harmful chemicals in these waterways.
In 1983, the Federal Soil and Conservation Service found
PCBs in Choccolocco Creek, but took no action again.
In 1985, State authorities found PCB contamination in Snow
Creek, and reported their finding to the EPA; however, the EPA
deferred cleanup of Snow Creek to the Alabama Department of
Environmental Management. For years, ADEM, as we call it, did
nothing, and EPA did not follow-up on the initial reports, or
the cleanup measures, as best as I can tell.
It was not until sometime in 1988 that Monsanto began to
implement a Snow Creek sediment removal effort. The EPA
conducted an RCRA facility assessment, identifying solid waste
management and areas of concern in 1991. These areas of concern
were identified after Monsanto had begun implementing the
requirements of the RCRA Part B permit, including closure
activities, groundwater monitoring, and development of
groundwater corrective action systems.
What makes all of this even more troubling is that in 1993,
ADEM, the Alabama Department of Environmental Management,
conducted another investigation of Snow Creek and Choccolocco
Creek that resulted in the issuance of a, I quote, ``No
consumption fish advisory.'' In other words, ``Don't eat the
fish.'' This was in 1993, by the Alabama Department of Public
Health.
I will not go into the time line, but I think that this
gives us a good idea of what has happened in Anniston. Time and
again, monitoring was done, measures were implemented, and PCBs
continued to appear. Quite frankly, this troubles me. It
troubles me that there were repeated monitorings and
investigations, and that it took years before any corrective
action was taken.
No one monitored EPA's activities; no one monitored ADEM's
activities; and, most importantly, no one monitored Monsanto's
activities. Monsanto ceased all PCB production at their
Anniston facility in 1971, but the facility is still there, and
it is operating. In fact, today, they produce a chemical used
in Tylenol, and until recently had not reported a toxic release
in four years. Despite this new production, PCBs still exist on
the facility grounds, in the two landfills, and who knows where
else.
The people who live around the Monsanto plant have higher
PCB levels than most any other residential population. Many
residents believe that their town has an abnormally high rate
of cancer, miscarriages, and liver, heart, and other ailments
that they say can be traced to Monsanto's PCB production. To
date, a comprehensive study of the illness rates in Anniston
residents has not been conducted. I think this is a failure of
the system.
I cannot believe that we would continue to work towards a
cleanup, monitor groundwater, surface water, and soil
composition, and never once ask how all this is affecting the
health of the citizens that live there.
I understand that Solutia, which is the successor company
to Monsanto, and EPA have reached an agreement to clean up
Anniston, but I have to agree with my constituents, that it
fell short of expectations. I believe it is imperative to
conduct a comprehensive health study for the residents, yes,
the residents, the people who live in Anniston. Without this
information, without the best science and information
available, I believe we will continue to make bad decisions and
bad choices for the people who live there.
I plan to work with the Labor and HHS Appropriations
Subcommittee to request a comprehensive health study in
Anniston, Alabama, and I would call on EPA today and Solutia to
work with me towards this goal.
The past actions of the agencies testifying today cause me
great despair. It is my hope that they will be able to reassure
me and to reassure my constituents that the actions of the past
will in no way reflect what they will do in the future.
Madam Chairman, I want again to thank you for holding this
hearing today. It is very important, I believe, to my
constituents, and perhaps to others like this in the United
States.
Senator Mikulski. Well, thank you very much, Senator
Shelby. I think you have laid out the issues very clearly, and
we thank you for that.
We are now going to turn to Deputy Regional Administrator
Stanley Meiburg, who is a professional from EPA, who has been a
career public servant and comes also with a doctorate from
Johns Hopkins, in my own home State. I welcome you.
And then we have Dr. Falk, who is also the Assistant
Administrator for the Agency for Toxic Substances and Disease
Registry, who himself is a physician, as well as brings his
considerable background in public health. So he understands the
day-to-day issues involved in being a patient, but also what
are the public health impacts of the advice that can be given.
So, Mr. Meiburg, we are going to turn to you.
And then, Dr. Falk, then you can go ahead. And we will then
go into questioning.
Mr. Meiburg. Thank you very much, Madam Chair.
statement of a. stanley meiburg
Madam Chair and Senator Shelby, my name is Stan Meiburg,
and I am the Deputy Regional Administrator for the
Environmental Protection Agency's Region 4 office in Atlanta,
Georgia. I am pleased to have the opportunity this morning to
testify about EPA's efforts to address PCB contamination in
Anniston, Alabama.
Over the years, polychlorinated biphenyls, known as PCBs,
and lead, have been discovered at levels of concern in
commercial and residential areas of the city. PCBs have also
been found in creeks, rivers, flood plains, and lakes as far
away as 40 miles downstream. The principal sources of these
PCBs is the chemical manufacturing plant owned formerly by
Monsanto, and currently by Solutia, Incorporated.
EPA is working with other Federal, State, and local
agencies to address pollution in Anniston. Most recently, EPA
and the Justice Department signed a consent decree with
Solutia. Under this decree, Solutia will conduct a
comprehensive study of PCB contamination in Anniston and the
surrounding area. The consent decree has been lodged in Federal
District Court, and the Justice Department is currently taking
public comment on it. After review of the comments, EPA and the
Justice Department will decide whether to ask the District
Court to finalize the consent decree.
My prepared statement covers these activities in more
detail, but this morning I would like to briefly describe why
we think this approach will produce progress for a
comprehensive, scientifically sound cleanup.
Senator Mikulski. Mr. Meiburg, if you would withhold for a
moment. I ask unanimous consent that your full statement be
included in the record. I note that what you are giving now is
a summary of your testimony. Let the record also show that our
brief review of your written testimony only eliminates the
historical aspects of this in the time we have allowed you, but
it does not leave out the important issues that you want to
address. Am I correct?
[The statement follows:]
Prepared Statement of A. Stanley Meiburg
Madam Chair and Members of the Subcommittee, my name is Stan
Meiburg, and I am the Deputy Regional Administrator for the
Environmental Protection Agency's (EPA) Region 4 office in Atlanta,
Georgia. I am pleased to have the opportunity to testify this morning
concerning EPA's activities to address PCB contamination in Anniston,
Alabama.
Anniston has been home to industrial activities for many years, and
some of these activities have led to significant pollution problems.
Specifically, polychlorinated biphenyls (PCBs) and lead have been
discovered at elevated levels in commercial and residential areas of
the city. PCBs have also been found in creeks, rivers, flood plains and
lakes as far as forty miles downstream. EPA and other federal, state
and local agencies are responding to the contamination and have
instituted numerous activities and programs throughout Anniston and
Calhoun County. EPA and the Department of Justice (DOJ) recently signed
a Consent Decree with two corporate parties legally responsible for the
PCB pollution, Solutia Inc., and Pharmacia Corporation. Under the
settlement, the companies will hire EPA-approved contractors to conduct
a thorough, comprehensive study of the PCB problem in Anniston and the
surrounding area. The companies will also immediately clean up private
residential properties in the area that have the highest levels of
contamination. The Consent Decree has been lodged in federal district
court and DOJ is currently taking public comment on it. After review of
the comments, EPA and DOJ will decide whether to ask the district court
to finalize the Consent Decree.
EPA is committed to protecting human health and the environment in
Anniston. EPA intends to work in a cooperative fashion with state and
local government, industry, and the citizens of Anniston, to ensure a
comprehensive cleanup. Because PCBs are considered probable carcinogens
and are linked to neurological and developmental health problems, EPA
is committed to using our available resources and authorities to
protect the public health and welfare of the citizens of Anniston. The
following discussion will review the history of the PCB problem in
Anniston and the actions EPA has already undertaken. I will also
describe the terms of the Consent Decree and explain why we believe
this will result in a comprehensive, scientifically sound cleanup of
Anniston.
Beginning in the 1930's, Monsanto produced PCBs and other
substances in Anniston. Monsanto ceased the production of PCBs in
Anniston in 1971. In 1997, Monsanto formed Solutia Inc., (Solutia) and
transferred ownership of its chemical division, including the Anniston
plant, to it. Solutia still owns the Anniston plant, which encompasses
70 acres of land, is located about one mile west of downtown Anniston,
and remains in operation manufacturing other chemicals. Over the
facility's lifetime, the plant disposed of hazardous waste at two large
unlined landfills which are located adjacent to the plant.
EPA's involvement with cleanup activities at this site has
paralleled the evolution of federal laws regulating the disposal and
cleanup of hazardous waste. The Resource Conservation and Recovery Act
(RCRA) which governs the ongoing operation of facilities that handle
hazardous waste was passed in 1976, and amended by the Hazardous and
Solid Waste Amendments of 1984 (HSWA). The Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA or Superfund) which
deals primarily with the cleanup of abandoned hazardous substances, was
passed in 1980, and amended in 1986 by the Superfund Amendments and
Reauthorization Act (SARA). After CERCLA and RCRA were enacted it took
several more years for EPA to develop regulations implementing the
programs.
EPA first became involved with this facility in the late 1970's, in
the early stages of the development of the federal legal structure for
addressing hazardous waste contamination. In the early 1980's, EPA
worked with the State of Alabama to determine how, and under which
program, to best address facilities like the Monsanto plant in
Anniston. EPA and the Alabama Department of Environmental Management
(ADEM) evaluated the operating facility under both RCRA and CERCLA
during the early 1980's and determined at that time that the RCRA
program was best suited to address the facility since it was an
operating plant.
Between 1980 and 1985 the facility submitted an application for an
operating permit and, like thousands of industrial facilities around
the United States, continued to operate existing hazardous waste units
under RCRA interim status pending a final permit. EPA added groundwater
monitoring requirements in 1985. In 1986, Monsanto was issued a joint
RCRA permit from EPA and ADEM covering the facility.
In 1985, the Alabama Attorney General's office informed EPA that
contamination in nearby Snow Creek was caused by releases of PCBs from
the Monsanto plant. Later that same year, following discussions between
the Alabama Attorney General's Office, ADEM, and EPA, federal action
regarding Snow Creek was deferred to the State and the State committed
to require Monsanto to submit a proposed cleanup plan for approval. In
1988, after submitting a cleanup plan to ADEM, Monsanto removed
approximately 1000 tons of PCB contaminated material from Snow Creek
and a nearby ditch.
However, further investigation by both EPA and the State of Alabama
continued to show concerns. In 1991, confirmation sampling performed by
EPA identified remaining contamination, and Snow Creek and its
associated drainage features were identified as potentially
contaminated areas. In 1993 and 1994, EPA's Superfund program, pursuant
to the Agency's RCRA deferral policy, formally deferred cleanup of the
Site to the EPA RCRA program, and the EPA RCRA program informally gave
ADEM the lead to regulate off-site contamination at the facility. In
1993, Alabama issued a public fish consumption advisory for Snow Creek,
Choccolocco Creek, and Lake Logan Martin as a result of sampling
conducted by ADEM.
In 1995, ADEM asked state and federal health agencies to conduct
health studies in a residential neighborhood surrounding Monsanto's
facility based on the potential for off-site PCB contamination. At
approximately the same time, ADEM entered into a Consent Order with
Monsanto under state and federal water laws to have Monsanto determine
if PCBs were being released, or had been released, into the community.
The studies indicated that PCBs from the facility had contaminated the
neighboring community. As a result, Monsanto voluntarily initiated a
buy-out and relocation program for residents of a portion of the
adjacent community in order to stop any ongoing exposure and to
implement interim remedial measures to prevent future releases of PCBs.
Solutia eventually purchased approximately one hundred properties as
part of this voluntary program and/or the 1996 Consent Order discussed
below. These properties consisted of approximately 44 occupied
residential properties, 39 vacant residential properties, 14 commercial
properties, and 2 churches.
In 1996, in response to recommendations of health studies conducted
by the Alabama Department of Public Health (ADPH) and the Agency for
Toxic Substance and Disease Registry (ATSDR), EPA and ADEM agreed that
ADEM should enter into a second Consent Order with Monsanto to address
both on-facility and off-facility contamination until it could be
incorporated into the facility's permit. ADEM received final
authorization to issue permits for the entire RCRA program in 1996, and
reissued the RCRA permit in 1997 to cover all on-site and off-site
contamination caused by the facility.
On December 31, 1998, EPA received a letter from the West Anniston
Environmental Justice Task Force, now known as Citizens Against
Pollution (CAP), asking for EPA action in regard to PCB contamination
in Anniston. CAP indicated that the residential contamination extended
beyond the areas previously addressed. In June of 1999, EPA conducted
soil and air sampling around the facility in response to citizen
concerns. In July of 1999, ADEM requested that EPA take the lead role
in administering remediation activities at certain off-facility areas
under CERCLA because Solutia refused to address those areas pursuant to
its RCRA permit.
EPA's CERCLA program began sampling off-facility properties in west
Anniston in February of 2000 to expand our understanding of the scope
and extent of PCB contamination in west Anniston. Since February of
2000, EPA has sampled approximately 800 residential, public, and
commercial properties. In October of 2000, Solutia entered into a
Consent Order with EPA, which was revised by an amended Consent Order
in October of 2001. Under the Consent Order, Solutia agreed to take
over the residential sampling for EPA in the areas covered by the
Order, and address any property where PCBs are found at a level that
could cause short-term health concerns. This work is being done with
close supervision by EPA. Pursuant to this Order, at any home where PCB
levels in the yard exceed short-term risk levels, Solutia is required
to temporarily relocate the residents and remove the contaminated soil
and replace it with clean fill. Of the more than 1,000 homes that have
been sampled by EPA or Solutia thus far, 24 properties require clean up
because they exceed the short-term clean up levels.
EPA and Solutia have also sampled hundreds of properties for lead
contamination in Anniston. EPA will conduct a soil removal cleanup at
any residential properties where lead contamination is found at levels
which warrant immediate removal. EPA intends to follow up this limited
cleanup with negotiations with potentially responsible parties (PRPs)
that historically contributed to the lead contamination to get them to
address areas or properties where lead levels may pose a health threat.
EPA has worked hard to establish a good working relationship with
the citizens of west Anniston. EPA's goal has been to develop a
successful community outreach network so that all the citizens of west
Anniston can find a receptive audience for their concerns and
questions. EPA has taken steps to ensure that local government,
community, and civic organizations are able to give the Agency input
regarding EPA's cleanup activities in Anniston. In February of 2000,
EPA established a local EPA Community Relations Center (CRC) staffed on
a daily basis in downtown Anniston. The CRC has served the community as
an information center, by distributing brochures and fact sheets, by
answering thousands of phone calls, and by providing services to
hundreds of visitors. EPA also has held numerous public meetings and
availability sessions to explain EPA's activities and receive input
from the community.
EPA's activities have included extensive door-to-door outreach to
develop ties with local citizens and meetings with local community
groups. EPA has provided $85,000 of grant funding to local groups to
allow them to hire consultants to assist them in understanding EPA's
activities in Anniston. EPA has also met repeatedly with local elected
officials to keep them up to date regarding EPA's ongoing activities in
Anniston. Earlier this week, on April 16, EPA had another public
availability session in Anniston to inform the community about the
Consent Decree. EPA intends to continue all of these community outreach
activities for as long as necessary to help keep the citizens informed
and involved in the ongoing cleanup process. Additionally, by law, many
of EPA's ongoing or planned activities provide specific public comment
and public outreach requirements. EPA is committed to ensuring full
public access and participation in all future cleanup decisions in
Anniston.
Over the years, EPA has attempted to work closely with ADEM and
other agencies to maximize the resources the government is able to
bring to bear in Anniston. In the past, EPA and ADEM followed a basic
division of labor for Anniston, with the State taking the lead role in
the remediation of the Solutia plant property while EPA handled all
other areas. In 2000 EPA, at the request of the community, conducted an
independent review of the cleanup of the plant and the two landfills on
Solutia's property. EPA utilized its Environmental Response Team (ERT)
to conduct this review. ERT is a specialized group within EPA which
provides expertise and support at the request of the Regions at
significant sites posing unique problems. The ERT published a report of
its findings in May of 2001. While the ERT Report supported ADEM's
activities on the property, it also indicated that several areas needed
additional study and that more work needs to be done to ensure that
there are not ongoing releases from the facility and the landfills.
In early 2001, EPA began informal negotiations regarding Anniston
with Solutia and Pharmacia. EPA informed the companies that it wanted
to conduct a Remedial Investigation/Feasibility Study (RI/FS) under the
Superfund process which would fully define contamination in the area
and develop cleanup alternatives. Typically at Superfund sites, EPA
signs an administrative agreement with responsible parties to conduct
the RI/FS. In this case, however, EPA has negotiated a judicial consent
decree because a judicial consent decree requires a public comment
process and EPA believes that, given the level of community concern
regarding PCBs, an open comment period would be beneficial to the
community.
In November 2001, EPA and DOJ began formal Consent Decree
negotiations with the companies. The negotiations resulted in a Consent
Decree being signed by the United States and both corporations. The
Consent Decree was lodged in federal District Court on March 25, 2002.
Since public input is an important part of the Superfund process, the
Consent Decree is currently undergoing an open comment period where
everyone has the opportunity to submit comments for 60 days, until June
3, 2002. If, after review of the comments, the United States decides to
proceed with the Consent Decree, it will petition the federal court to
enter the Consent Decree.
The Consent Decree requires that Solutia and Pharmacia hire EPA-
approved contractors to conduct the RI/FS to evaluate the extent of the
contamination, the risks it poses to public health and the environment,
and to develop final cleanup options for the Site. The study will be
rigorously overseen by EPA. Following completion of the study, EPA will
select a final cleanup remedy after a further public input process. EPA
then intends to negotiate another Consent Decree with Solutia/Pharmacia
to implement the final remedy which would also involve rigorous
oversight by EPA. The current Consent Decree requires that all of
Solutia/Pharmacia's work be done following the comprehensive and strict
requirements of the federal Superfund process. The Consent Decree also
requires that the clean up of residential yards continue on a worst
first basis; that $3.2 million be committed by the companies over a
period of twelve years to assist the community with helping children
with special educational needs; and provides up to $150,000 for citizen
groups to hire technical consultants to participate in the study and
evaluation process. Finally, EPA will be reimbursed over $6 million in
taxpayer money it has already spent on various cleanup actions in
Anniston.
The Consent Decree requires the RI/FS process to cover all areas
where PCBs are located, including the Solutia plant property and the
landfill areas. EPA will build on ADEM's previous work in these areas,
and intends to work cooperatively with ADEM's RCRA program to maximize
resources and avoid redundancy. EPA made the decision to assess the
entire Anniston area under the Consent Decree for the following
reasons: (1) because of the widespread nature of the PCB contamination;
(2) to provide a single programmatic and legal framework for the entire
area; and (3) to ensure that before EPA conducts cleanup activities
downstream and in floodplain areas that there is no potential for
release of PCBs from the property. By conducting the additional air,
groundwater, and soil studies called for in the ERT Report, EPA will
make certain that the Solutia facility and the landfills are not
ongoing sources of contamination.
The final long-term cleanup of Anniston presents extremely
complicated technical and legal issues because the contamination
involves a large and diverse geographic area. The contamination has
spread to area waterways and their floodplains, as well as hundreds of
residential, commercial, and agricultural properties. To completely
address the pollution problem in Anniston will likely take years of
hard work and cost millions of dollars. Therefore, EPA has developed a
basic strategy to clean up the most highly contaminated areas first
while simultaneously conducting a detailed study to determine the best
final cleanup solution to protect the public health and welfare of the
people of Anniston. EPA believes that utilizing the Superfund process
is the best guarantor of a timely, complete, efficient cleanup. EPA's
Superfund program has proven it has the expertise to successfully clean
up areas such as Anniston. EPA is committed to the Superfund legal
principle that the polluters should either undertake cleanup activities
themselves under close government oversight or bear the costs for
government-led cleanup actions. EPA is also committed to ensuring that
cleanup activities in Anniston are done in a technically appropriate,
cost-effective manner, that is based on sound science.
This concludes my prepared statement. I would be pleased to answer
any questions that you may have.
Mr. Meiburg. Yes, Madam Chair. Thank you very much.
Senator Mikulski. Okay. So please proceed.
Mr. Meiburg. Thank you.
During the 1980s and 1990s, EPA worked with the Alabama
Department of Environmental Management, or ADEM, to address PCB
contamination in Anniston. In the mid-1990s, however, we
received reports from citizens concerned about the extent of
contamination. In July of 1999, ADEM asked us to use our
Superfund authority to address certain areas outside the
boundary of the plant, and in April 2000, Governor Siegelman
wrote to the President requesting his assistance.
Since then we have conducted soil and air sampling at
residential, commercial, and industrial properties in West
Anniston, and identified properties with PCB levels which need
immediate cleanup. This work is being paid for by Solutia. More
than 1,000 residential properties have been sampled to date,
and Solutia, under close EPA supervision, must address any
property where PCB levels raise short-term health concerns.
In February of 2000, we set up a community relations center
in downtown Anniston, and have funded consultants from local
community groups to help them understand our activities. We
also conducted an independent review of the Solutia plant
property, which showed that while a lot of good work has been
done, some areas need additional study to make certain there
are not ongoing releases from the property.
We also needed a comprehensive plan to clean up PCB and
lead contamination which can pose longer-term risks. Therefore,
in early 2001, EPA began negotiations with Solutia to conduct a
remedial investigation and feasibility study which would fully
define contamination associated with their facility, and
develop cleanup alternatives.
These negotiations resulted in the consent decree which was
lodged in Federal District Court on March 25. The consent
decree was open for public comment until June 3, 2002. This
consent decree requires Solutia to hire EPA-approved
contractors to evaluate the extent of the contamination, its
risk to public health, and the environment, and to develop
cleanup options for the site. This work will be rigorously
overseen by EPA. EPA will then select a final cleanup remedy
after additional public input.
Solutia will have to follow the requirements of the Federal
Superfund process, continue to clean up residential yards on a
worst-first basis, spend $3.2 million on a trust to help
children with special educational needs, and provide $150,000
for citizen groups to hire technical consultants. In addition
to paying EPA's future oversight costs, Solutia will also
reimburse over $6 million for past EPA expenses.
The remedial investigation and feasibility study will cover
areas where PCBs are located, including the Solutia plant
property. Its coverage is broad for three reasons: first, the
widespread nature of the PCB contamination; second, to provide
a comprehensive framework for the entire area; and third, to
ensure that there is no potential for future releases of PCBs
from the property.
We are all aware that the community would have wanted EPA
to include in this consent decree funding for medical services.
We were not able to achieve this outcome since we had no
authority under Superfund to require funding of this type.
However, Solutia has agreed to the educational trust described
above, and we regard this as a positive step. Moreover, the
consent agreement gives the government the ability to carefully
oversee all study and cleanup actions. The fact that the
company entered into this consent decree shows public
involvement at every step in the process, and ensures that
maximum available funds are spent on actual cleanup activities.
The ultimate cleanup of Anniston will be complicated,
because the contamination involves a large and diverse
geographic area, and will take years of hard work, and cost
millions of dollars to fix. In this case, our Superfund
authorities are the best guarantee of a timely, complete
cleanup, and we have the technical expertise necessary to
oversee the work.
We are proud of our ongoing activities, and look forward to
working with our other Federal partners, local and State
authorities, citizen groups, and individuals to protect the
public health and the environment in Anniston.
Thank you for the opportunity to testify, and I will be
happy to address any questions you may have.
Senator Mikulski. We will come to those. Thank you.
Dr. Falk.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
STATEMENT OF HENRY FALK, M.D., MPH, ASSISTANT
ADMINISTRATOR, AGENCY FOR TOXIC SUBSTANCES
AND DISEASE REGISTRY
Dr. Falk. Thank you very much.
Good morning, Madam Chair and Senator Shelby. My name is
Henry Falk, and I am the assistant administrator of the Agency
for Toxic Substances and Disease Registry.
Let me say very briefly that ATSDR is a Department of
Health and Human Services agency, but we have a role under
CERCLA and Superfund to work closely with EPA, State health
departments, and local communities for looking at the health
issues related to Superfund sites. I am pleased to be here with
you this morning to share our agency's work in Anniston,
Alabama.
I would like to briefly highlight some of our health-
related activities in Anniston, and I would ask that my longer
written testimony be made part of the record.
Our initial involvement in Anniston came in 1995 when the
Alabama Department of Health, with both technical and financial
support from ATSDR, found that there was a likelihood of human
exposure to PCBs for residents living next to the site where
PCBs were produced in the past. The PCBs were clearly at
decidedly elevated levels. The average was 24.5 parts per
billion, which is considerably high for an average level.
Both the Alabama Department of Health and ATSDR conducted a
number of continuing consultations and investigations in
subsequent years, with assistance from EPA, State, and
community groups. In the year 2000, we prepared a report
summarizing the information on serum PCB levels and other
information on almost 3,000 individuals in Anniston.
Almost half of the individuals had detected levels of PCB
in their blood. Approximately 15 percent had levels that were
above 20 parts per billion, and actually 35 percent were above
10 parts per billion. All of these are considerably elevated
numbers.
PCB levels in some residential soils posed a public health
hazard.
Last year, ATSDR did another smaller exposure investigation
of individuals living close to the site, and again, five of 43
adults had elevated PCB levels in their blood, although none of
the 37 children tested had elevated levels.
Also, last year, ATSDR released two health consultations
related to lead contamination in Anniston. And in response to
community concerns, we worked together with, again, the State
and local health departments, Community Against Pollution, and
other community groups, to facilitate a screening program for
lead poisoning values in children. Although a few elevated
levels were found, collectively, the data did not indicate
levels of lead in children that were higher than State or
nationwide levels.
As a result of this program, CAP, Community Against
Pollution, acquired additional resources from several groups to
conduct ongoing monthly health education classes regarding lead
poisoning in the community, and I think the collaborative
effort involved in that project did foster good communication
between the community, local physicians, and State and Federal
health agencies.
In a meeting, again, last year with David Baker and members
of CAP, there were two other things that I had promised him
that we would work on. One was to have a workshop related to
the potential for health studies and to evaluate those issues,
and we did have a workshop in January of 2001. We hope to have
the results of that workshop available next month.
Second, we did highlight the issue of the importance of
neurobehavioral development in children exposed to PCBs, and
the importance of education programs, and several groups have
continued to focus on that.
We have a number of upcoming activities in Anniston; we are
continuing to review available environmental data, and
additional health data. We have been assisting others working
in that area, such as on a project that CDC will be doing, in
assessing community environmental health issues. We stand very
ready, as we have in the past, to work with groups at the State
level, local level, and community level to conduct any further
sampling of serum levels, any further health testing, and
review of environmental data.
This concludes my testimony. I will be happy to answer any
questions. Thank you.
Senator Mikulski. Thank you very much, Dr. Falk.
[The statement follows:]
Prepared Statement of Henry Falk, M.D., M.P.H.
Good morning, Madame Chairman and members of the Subcommittee. I am
Dr. Henry Falk, and I am the Assistant Administrator of the Agency for
Toxic Substances and Disease Registry (ATSDR). I am pleased to be
meeting with you today to share with you the results of our agency's
ongoing work in Anniston, Alabama.
We join you in your concerns about the health and well being of
children and families in Anniston and across the country. We also share
your desire to address the concerns expressed about illnesses and
diseases that might be linked to environmental factors. In fact, ATSDR
was created to address these types of concerns.
Congress created ATSDR in 1980 through the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), more
commonly known as Superfund. The Superfund legislation created ATSDR to
be the principal public health agency to evaluate the human health
effects related to exposure to hazardous substances from waste sites
and other locations with uncontrolled releases of hazardous substances
into the environment. ATSDR was charged with evaluating public health
concerns and advising the U.S. Environmental Protection Agency (EPA)
and State health and environmental agencies on any actions needed to
clean up hazardous waste sites and protect the public's health.
ATSDR works in close collaboration and partnership with EPA; other
Federal agencies; local, State, and tribal governments; health care
providers; and affected communities. As an agency of the U.S.
Department of Health and Human Services (DHHS), ATSDR has made a
difference to all of these partners by providing new information to
assist in remedial decision-making and evaluation. Our work includes
answering the health questions of persons who live in communities near
affected sites, recommending preventive measures to protect public
health, and providing diagnosis and treatment information to local
health care providers. ATSDR administers public health activities
through partnerships; public health assessment and consultation
activities; exposure investigations; health studies and health registry
activities; development of toxicological profiles and attendant
research; emergency response; health education and health promotion;
and community involvement.
Today, I will summarize our health activities in Anniston and also
report on some of the activities of our partners.
Anniston Health Issues.--In response to community members' concerns
about polychlorinated biphenyls (PCBs) in Anniston, ATSDR is working
with EPA Region 4, the Alabama Department of Public Health, and the
Alabama Department of Environmental Management to identify
environmental contaminants in selected areas of west Anniston.
Investigations, both past and ongoing, have determined that PCBs are
present in the soil at numerous residential and commercial properties
in Anniston. In more recent investigations, EPA is further assessing
the contamination by sampling for other contaminants, including metals
such as lead.
The earliest health work was done by the Alabama Department of
Public Health with both technical and financial support from ATSDR. In
1995 that department released a report indicating the likelihood of
human exposure to PCBs for residents living next to a site where PCBs
were produced in the past. The ensuing investigation found that
approximately 25 percent of the people tested had elevated levels of
PCBs in their blood. The department's health assessment released last
year determined that people living near the Solutia plant were at risk.
The results showed that there was both a current and past public health
hazard for children if they were exposed to PCBs in soil at specific
homes where the soil had not been remediated.
ATSDR Research on PCBs.--ATSDR has published extensive up-to-date
information on PCBs in its Toxicological Profile for Polychlorinated
Biphenyls, which was revised in November 2000. An ATSDR paper on the
public health implications of PCBs published in September of 1999
reported the following potential health effects associated with
exposure to PCBs:
--Reproductive function may be disrupted by exposure to PCBs.
--Neurobehavioral and developmental deficits occur in newborns who
were exposed to PCBs in utero, and these deficits may continue
through school-age.
--Other systemic effects are associated with elevated serum levels of
PCBs.
--PCB exposure is associated with increased cancer risk.
Additional research conducted under the Great Lakes research
program has further demonstrated that:
--Children born to mothers who consumed more than the median number
(116) of fish meals before their pregnancy were significantly
more likely to have low birth weight.
--Maternal serum PCB concentration was significantly associated with
fish consumption and low birth weight.
--Infants who had been exposed prenatally to the most highly
chlorinated PCBs had poorer performance on the habituation and
autonomic tests of the Neonatal Assessment Scale when tested
24-48 hours after birth than did infants who were not exposed.
The relationship between prenatal exposure to PCBs and performance
on the Fagan Test of Infant Intelligence (FTII) was assessed in infants
at 6 months and again at 12 months. The results indicated a significant
relationship between exposure to PCBs and poor performance on the FTII.
PCBs and DDE were markedly elevated in a cohort of adults who
consumed fish. Exposure to PCBs, but not to DDE, was associated with
lower scores on several measures of memory and learning.
ATSDR Health Consultation Activities Related to PCB Exposures.--In
2000, ATSDR released a draft consultation of our evaluation of PCB soil
and air data provided by EPA and information provided by an Anniston
attorney on the biological blood sampling data of 3,000 individuals.
The consultation reported the following findings:
--PCB levels in some residential soils posed a public health hazard.
--About half of the persons tested had detectable levels (greater
than 3 parts per billion for this consultation) of PCB in their
blood.
--Approximately 15 percent of the persons tested showed blood PCB
levels that indicated elevated environmental exposure, or
levels greater than 20 parts per billion.
--Air data were not sufficient to make a health judgment.
At the request of residents, ATSDR conducted a health consultation
to evaluate water quality in two private wells in Anniston. The health
consultation found that all substances of concern in the well water
samples were below levels of health concern.
Last year ATSDR released a final report on an exposure
investigation conducted to address community concerns about ongoing
exposure. A primary interest in the investigation was evaluating
exposures to children. The report concluded that:
--Five of 43 adults tested had blood PCB levels that indicated
elevated environmental exposure.
--None of the children tested (37) had blood PCB levels indicating
elevated environmental exposure.
--Blood PCB levels were not correlated with soil or house dust PCB
levels.
ATSDR Health Consultation Activities Related to Lead Exposure.--In
2001, ATSDR released two health consultations related to lead
contamination in Anniston. The first found elevated levels of lead for
west Anniston properties. The second consultation evaluated lead levels
at a softball park about 5 miles from Anniston. The health consultation
found that lead levels at the park were below levels of health concern.
In response to community concerns that children in Anniston could
be exposed to lead, ATSDR and a local group, Community Against
Pollution (CAP), facilitated a screening program in spring 2001. The
program focused on children less than 6 years old who lived in areas of
Anniston known to have contaminated soil. Four of the 410 children
screened were found to have blood lead levels equal to or greater than
current guidelines of 10 micrograms per deciliter (g/dL). Close to 25
percent of the children screened had blood lead levels of 5.0 g/dL to
9.9 g/dL. These findings provide evidence that children are being
exposed to lead. Because of the limited number of sampling results,
this project did not provide a complete picture of blood lead levels in
Anniston. Collectively, however, the data indicate that blood lead
levels in children in Anniston are similar to those reported for other
areas of the State and nation.
As a result of this program, CAP acquired additional funding from
several sources to conduct ongoing monthly health education classes in
the community. These classes emphasize the importance of continued
screening and provide information that community members can use to
reduce the potential for exposure to lead.
The collaborative efforts demonstrated through the success of the
screening program have fostered communication among the Anniston
community, local physicians, and local, State, and Federal health
agencies. The project provides evidence that community-based research
can result in a successful outcome for everyone involved.
PCB Expert Workshop.--In early January of this year, ATSDR held a
panel session in Atlanta entitled Exploring Opportunities for PCB-
Related Health Studies in Anniston, Alabama. The purpose of the session
was to gather input from nationally recognized PCB experts on issues
related to the options of conducting health study activities in
Anniston. The seven experts on the panel came from different
universities throughout the United States, including the University of
Alabama at Birmingham and Harvard University. Among the issues
discussed at the session were research needs, community needs, and
methods for reaching a better understanding of exposure in the Anniston
community. Community members, as well as State and Federal health and
environmental officials, attended as audience observers. A summary
report of the meeting will be available in May.
Pediatric Environmental Medical Support.--In 2000, the Southeast
Pediatric Environmental Health Specialty Unit (PEHSU), which is based
at Emory University in Atlanta and is supported by ATSDR and EPA,
became involved in Anniston to provide information and support to local
pediatricians. While in Anniston, it became clear that there was
concern among community members for the health and well-being of the
children. In particular, concerns were voiced regarding the number of
children who had difficulties with development, learning, and behavior.
The big question voiced by community residents was what role pollution
played in this picture.
A series of meetings was held over the course of a year between the
PEHSU representatives and the leaders in the community. These meetings
focused on finding a solution to help the children, rather than on what
may or may not be the cause. On December 4, 2001, a day-long working
conference was held in Anniston. Leaders from all sectors of the
community attended the conference. Participants included the mayor and
representatives from community action groups, business, education, and
health care all committed to the well-being of the children of
Anniston.
Conference attendees produced a list of concepts and ideas for
future discussion, including the following:
--An inventory of existing agencies to identify resources in the area
that would be needed to meet the needs of children with
learning and developmental problems.
--A program to enhance existing services for children with learning
and developmental disabilities; additional services could also
be considered to better meet the needs of as many children as
possible. This program could improve the likelihood of a
positive outcome and success in life for the children of
Anniston.
--A process for documenting learning and developmental disabilities
in Anniston and evaluating the success of intervention
services.
A Steering Committee was established to explore these suggestions.
The committee has met twice and has scheduled a community-wide meeting
for April 30, 2002, to update the entire community on the progress to
date and generate the next set of steps.
Health Care Needs.--ATSDR has neither the legislative authority nor
the resources to provide medical care in any of the communities in
which we work. Moreover, frequently we find that ``Superfund''
communities lack the necessary medical care resources. We can and do
call on our Pediatric Environmental Health Specialty Units to provide
medical care referrals. We offer specialized training to local
physicians on diagnosis and treatment related to exposure to specific
chemicals. We also work to identify other programs in the U.S.
Department of Health and Human Services that may offer assistance and
resources to these communities.
Future Activities in Anniston.--ATSDR in cooperation with EPA,
State and local agencies, and the community is continuing a number of
activities, including:
--A health consultation reviewing air data near the site for January
2000 January 2001;
--A review of available blood lead data for Calhoun County over the
past 5 years;
--A final version of the health consultation entitled Evaluation of
Soil, Blood, & Air Data from Anniston, Alabama;
--Collecting samples of locally grown vegetables, which will be
tested for the presence of PCBs and lead;
--A health consultation that will evaluate fish consumption as a
potential PCB exposure pathway;
--Assisting as appropriate in the Protocol for Assessing Community
Health Excellence in Environmental Health (PACE-EH, funded by
the National Center for Environmental Health, Centers for
Disease Control and Prevention), under the direction of the
Calhoun County Health Department. This community-based process
will provide a better understanding of the environmental health
concerns of the community.
We have been intensively involved in the Anniston community for the
past 3 years, and will continue our work for the foreseeable future. In
close cooperation with our partners in the community, in the State, in
other Federal agencies, and in academia, we remain committed to
protecting and promoting the health of Anniston's citizens.
Madame Chairman, this concludes my testimony. I will be happy to
answer any questions you or the other subcommittee members may have.
Senator Mikulski. Ordinarily, the Chair begins the line of
questioning, but as a Senatorial courtesy, I would like to
extend to Senator Shelby the opportunity to begin the
questioning. I believe it will set the tone, and will establish
a very good framework.
Senator, please.
Senator Shelby. Thank you, Madam Chairman. Thank you for
your courtesy. We have worked together on a lot of issues since
we were in the House together, and then in the Senate.
Senator Mikulski. Senator, remember, we were on the Energy
and Commerce Committee when so much of this legislation that we
are overseeing today was created by Superfund----
Senator Shelby. Absolutely.
Senator Mikulski [continuing]. And we were one of their
supporters.
SUPERFUND DESIGNATION PROCESS
Senator Shelby. We worked together then, and we work
together now. Thank you, Madam Chairman.
I will direct these questions, unless I say otherwise, to
the Deputy Regional Administrator of EPA, Mr. Meiburg.
Does EPA, sir, always handle Superfund contamination in
this manner, that is, by ceding responsibility to the State
agencies?
Mr. Meiburg. Senator, generally, Superfund is a Federal
program that, unlike many of the programs that EPA has which
are delegated authorities of the Clean Air Act, or the Clean
Water Act, or the Resource Conservation Recovery Act, Superfund
itself is one that we directly administer ourselves.
Senator Shelby. Okay. Tell me how the cleanup effort, or
tell the Committee, I should say, would differ if Anniston were
officially declared a Superfund site, and if they were placed
on the National Priorities List.
Mr. Meiburg. Senator, actually, the activities that we have
laid out in the consent decree are exactly what we would be
doing if----
Senator Shelby. The same thing?
Mr. Meiburg. Yes. That is correct.
Senator Shelby. In other words, there would be no
difference if you put Anniston on the so-called--if it were
declared a Superfund site, and was placed on the national
priorities list, that would not make any difference?
Mr. Meiburg. No. If we placed it----
Senator Shelby. Then why do you have a different list then?
Mr. Meiburg. If we placed it on the National Priorities
List, the first step that would occur would be that we would
conduct a remedial investigation and feasibility study to
determine the extent of contamination and to develop
alternatives for cleanup, which is exactly what this consent
decree provides.
EPA VS. CORPORATE CLEAN UP ACTIVITIES
Senator Shelby. Okay. The citizens of Anniston are
concerned that Solutia, which is the successor company--they
just changed the name, I think--to Monsanto, would be
overseeing testing and cleanup of any future PCB contamination
detected. Is this the normal practice? Why does EPA not do the
work, and make the company pay, in other words?
Mr. Meiburg. Well, let me see if I understand the question
correctly.
Senator Shelby. Do you want me to ask it again?
Mr. Meiburg. Yes, please.
Senator Shelby. Okay. The citizens of Anniston that I have
talked with are very concerned that Solutia, the company, will
be overseeing the testing and cleanup of any future PCB
contamination that is detected. My question is: Is this a
normal practice? And why does EPA not do the work, and make the
company pay, rather than the company do the work?
Mr. Meiburg. There are two ways we can proceed on cases
like this.
Senator Shelby. Okay.
Mr. Meiburg. One, as you said, is for EPA to do the work,
and then go back and seek reimbursement from the company. The
other option we can have is for the company to pay up front to
do the work with oversight by EPA, which is provided for at
every step in the process.
Senator Shelby. Well, see, a lot of the people there would
have a lot more confidence in EPA than they would in the
company who they believe brought the pollution in the first
place, and covered it up for years. Do you understand where--it
is a question----
Mr. Meiburg. Yes, sir.
Senator Shelby [continuing]. Of credibility.
Mr. Meiburg. Yes, sir. The credibility issue is very
important, and we fully understand the very significant role
that we have in providing exactly that kind of oversight. The
decree provides that in the conduct of our oversight that if we
determine at any point that the company is not following
exactly the procedures that are laid out that we would use,
then we can step in and take over the activities.
Senator Shelby. In your testimony, you state that the
contractors will be hired to conduct a thorough, comprehensive
study of the PCB program in Anniston and the surrounding areas;
however, others have alleged that the study will only be done
on property where PCB contamination has been detected.
Could you please explain to the committee exactly what will
be studied, so that we are all clear? In other words, if you
are just going to look where PCBs have been discovered thus
far, that sounds like a sham cleanup.
Mr. Meiburg. Senator, the point----
Senator Shelby. See, you have to reassure the people of
what you are doing; otherwise, they would have no confidence in
this measure, and rightly so. Go ahead, sir.
Mr. Meiburg. Yes. That is absolutely right. It is very
important that the people have confidence in the results of the
study. The intent that we have in the oversight, and the
conduct of the study is to look throughout the community----
Senator Shelby. Okay.
Mr. Meiburg [continuing]. To see where it is possible the
PCBs may have been, whether they have been found there
previously or not.
Senator Shelby. That is what you mean by ``comprehensive
study.''
Mr. Meiburg. Yes, sir.
Senator Shelby. Your intention is to clean--find what is
there, identify, and clean it up----
Mr. Meiburg. Yes, sir.
Senator Shelby [continuing]. Is that right?
Mr. Meiburg. Yes, sir. In part, the reason why
comprehensive is so important is that, as you look over the
history of identification of contamination at this site, when
you look back you find that it initially started as a narrow
potential area of concern, and expanded as we got more
information, for example, about where the flood plain was. Some
of this information is information that we received from
citizens themselves that has been very helpful.
PREVENTING FURTHER CONTAMINATION EPISODES
Senator Shelby. How do we prevent another Anniston-type
situation from happening? That has to be a concern of yours at
EPA. Could it be happening again?
Mr. Meiburg. That is a very good question. The main thing,
in terms of preventing activities like this from happening in
the future, reaches to a couple of areas. The first is: We have
to make sure that we have good laws and regulations on the
books to govern people's activities, and that those laws and
regulations are effectively enforced.
We have to have a very strong partnership with all of the
people involved, including communities, as well as State
regulatory agencies under the Resource Conservation Recovery
Act, and our own activities to make sure that companies are
preventing pollution problems. It is much easier to prevent
them than it is to clean them up afterwards.
Senator Shelby. Right now, we have a cleanup, a big, bad
cleanup problem, have we not?
Mr. Meiburg. Yes, sir. In Anniston, this is going to be a
very difficult----
Senator Shelby. Words have meaning, we always know that,
and the word ``comprehensive'' has deep meaning, but only if a
comprehensive job is actually carried out; in other words, done
right, broad and deep. Is that correct?
Mr. Meiburg. Yes, sir.
ADEQUACY OF CONSENT DECREE
Senator Shelby. Mr. Baker alleges in his written testimony
that the consent decree makes no sense, given Monsanto's past
performance, specifically because it does not address a cleanup
of the landfills. The allegation is that the PCBs continue to
come from these sites. Are they, and how do we guarantee that
it is not happening?
Additionally, if you could, address specifically why these
were not included as part of the cleanup initiative called for
in the consent decree. In other words, if you are going to talk
about a comprehensive plan to clean it up, do you not have to
go to the landfills, too? Do you want to comment on that?
Mr. Meiburg. Yes, sir, I will. One of the precise reasons
that we included the landfills, which are on the property of
the plant itself, in the framework of the consent decree, was
to ensure that risks from the landfills would be addressed as
part of the overall assessment, that we have to make sure, that
as a scientific matter, whether or not there are continued
releases from the landfill to look at the----
Senator Shelby. In other words, you are not excluding the
landfills----
Mr. Meiburg. No, sir. They are very much included.
Senator Shelby [continuing]. In the consent decree. You are
saying they are not going to be excluded.
Mr. Meiburg. That is correct.
Senator Shelby. They will be included----
Mr. Meiburg. Yes, sir.
Senator Shelby [continuing]. Okay, in the comprehensive
study.
Mr. Meiburg. Yes, sir.
COMMUNITY PARTICIPATION
Senator Shelby. A lot of people argue that they have been
largely ignored throughout this process, and have no one to
speak for them. And in particular where the terms of the
consent decree is concerned, some of the most important needs
of the community a lot of people feel have not been addressed.
Have the communities' needs been addressed, do you believe, in
this, or will they be addressed?
I think most of them, maybe not all concerns, but are the
ones of health. In other words, a lot of people cannot move
from the community. They do not have economic resources to do
that. They have to live there. They worry. They are worried
about their children. They are worried about their health, and
rightly so. Do you want to address that? Do you think they have
been included, their concerns here, or will they be? They have
not in the past, so the question is: What is different now?
Mr. Meiburg. Senator, the issue of the needs of the
community is one that is important to us. We recognize that
when you look at the issue of community needs, you are not just
talking about cleanup of the site; you are talking about all of
the needs, whether they be health, whether they be economic
development----
Senator Shelby. That is right.
Mr. Meiburg [continuing]. Any of those kind of things. What
we are trying to do, within the scope of our statutory
authority, is to make sure that what we are doing is well
explained to the community, that we have a presence in the
community, so that people can understand what is going on, and
address questions that they may have. That is one of the
reasons that in the negotiation of the consent decree, we
pushed for some provisions that we could not do if we were
doing the activities on our own; for example, the educational
trust fund.
Senator Shelby. Has the Anniston community been treated
differently from other communities with similar problems in the
United States, or is it a uniform policy?
Mr. Meiburg. Senator, I do not know if I could speak for
every community in the United States, but I will say that we
have tried, because of the concern the community has raised to
us, to make sure that we are paying particular attention to
answering questions, and working with groups in the Anniston
community.
TESTING FOR PCBS
Senator Shelby. Is it possible to test to guarantee that
the dumps are not releasing PCBs? In other words, if the PCBs
are there, has any testing been done of the dumps to see, thus
far, to your knowledge? Do you know?
Mr. Meiburg. There has been testing done at the dumps. One
of the things we would like to do in the course of the study is
to do some additional testing to make sure.
Senator Shelby. Comprehensive testing?
Mr. Meiburg. Yes, sir. There are three possible pathways
for release of the contaminants from the dumps. One would be
surface water runoff. The second would be airborne release of
some form. And the third would be groundwater contamination. So
we want to make sure that each one of those pathways is fully
investigated.
COMPREHENSIVE HEALTH STUDY
Senator Shelby. Should not a complete health study be done
there, and should it not be done by some group like the Center
for Disease Control, or somebody that the people would have
confidence in their findings? Do you oppose that?
Mr. Meiburg. No, we do not oppose that at all. I would
defer----
Senator Shelby. Do you promote that? I would promote it. Do
you disagree with it?
Mr. Meiburg. No, sir.
Senator Shelby. Okay. Do you have any comment on it?
Mr. Meiburg. Only that I would defer on the expertise of
that, as we do ourselves, that we are not health experts, and
we usually defer to our colleagues with the ATSDR, as Dr. Falk
mentioned in his statement, for a lot of assistance on that
kind of work.
ROLE OF ATSDR
Senator Shelby. Dr. Falk, could you explain to us how ATSDR
becomes involved in a community, and what their role is?
Specifically, what has been your role in Anniston, Alabama?
Dr. Falk. Let me say generally that ATSDR, as I mentioned,
is an HHS agency. It was created as a result of the CERCLA
legislation, for the purpose of working on health issues
related to Superfund sites. We work very closely with EPA as a
result, and we have cooperative agreement programs with a
number of State health departments, including the Alabama State
Health Department.
At the same time, because we are with HHS, we are
connected, for example, to other HHS agencies, and
particularly, the CDC. The Administrator of ATSDR, who I report
to, has always been the same person as the Director of CDC. So
we work very closely with folks at CDC, and have a very good
collaborative relationship.
Let me say in terms of our role in Anniston, we have been
supportive of the State health department. We have met many
times with community groups. We have tried to assist on the
particular issues that have been raised by the communities,
such as evaluating all of the serum PCB levels that have been
drawn; such as working on the lead projects; such as helping
them through proposed health studies.
I might add, if I could for a moment, in terms of health
studies, that this committee has supported work which ATSDR has
carried out over the last 10 years in the Great Lakes area,
which is an extensive research program, that has released a
number of reports and studies on the health effects of PCBs, so
that the work that has been supported in that area has produced
a large body of information on what the potential health
effects are.
I think in terms of health studies in Anniston at least for
us, we would want to work very closely with the State and with
the community to think through what would be the most
appropriate health study, what would be most helpful to
people----
Senator Shelby. Does that include the CDC?
Dr. Falk. Sure. As I said, we work with them regularly. I
report basically to the same person as the director of CDC. For
example, when we do laboratory work, as in Anniston, the serum
samples are tested in the CDC, because we do not have our own
lab to actually run those samples. So we work closely with them
on a regular basis.
Senator Shelby. Thank you.
Thank you, Madam Chairman. I will wait for the next round.
RECUSAL OF EPA OFFICIALS
Senator Mikulski. Yes. Thank you, Senator Shelby. We will
come back to this.
Mr. Meiburg, my first line of questions will really be with
you, and then my second line will be to Dr. Falk.
Know that, number one, I respect you when I said ``career
civil servant at EPA who brings a great deal of professional
expertise and experience,'' but I will tell you what I am
troubled about. It seems like everybody is recused in this
situation.
Now, let me go through what is usual and customary at EPA.
On a regular basis, to whom do you report?
Mr. Meiburg. On a regular basis, I report to the regional
administrator, in this case, Mr. Jimmy Palmer.
Senator Mikulski. Why is he not here today?
Mr. Meiburg. Mr. Palmer was recused on this case, because
he worked in private practice--his background was that he was
an executive director of the Mississippi Department of
Environmental Quality for 12 years, from which he resigned in
1999, and went into private practice as an attorney. While he
was in private practice as an attorney, he represented a couple
of the foundries which are in Anniston, and one of the issues
in this case is the contamination in the Anniston community--
there is PCB contamination, but there is also some lead
contamination. He was involved with these companies. He had
been involved with the foundries. He had no connection with
Solutia, per se. But the issue, just to finish up the point, is
that the foundries and Solutia may have interests that are
adverse to each other when it comes time to apportion
responsibility for paying for the cleanup----
Senator Mikulski. Okay.
Mr. Meiburg [continuing]. And under the rules of the
Mississippi Bar, he could not be involved in this case.
Senator Mikulski. Okay. Now, to whom does Mr. Palmer
report?
Mr. Meiburg. Mr. Palmer reports to Governor Whitman.
Senator Mikulski. To whom?
Mr. Meiburg. To Governor--to the Administrator.
Senator Mikulski. Does not Mr. Palmer report to Linda
Fisher, who is the Deputy Administrator?
Mr. Meiburg. Linda Fisher is the Deputy Administrator.
Senator Mikulski. To whom do the regionals report? Do they
all report to Administrator Whitman----
Mr. Meiburg. Yes, they do.
Senator Mikulski [continuing]. Or do they report to
Administrator Whitman through Linda Fisher?
Mr. Meiburg. They report directly to the Administrator.
Obviously, the Administrator and the Deputy Administrator work
together very closely on all matters affecting the agency.
Senator Mikulski. What is the role of the Deputy
Administrator, Linda Fisher, normally, in working with the
regions?
Mr. Meiburg. The Deputy Administrator normally is almost
the chief operating officer, and handles a lot of the day-to-
day matters that affect the agency. Regional administrators
have a great deal of flexibility and discretion under EPA's
organizational structure, but they work together closely as a
team.
Senator Mikulski. Now, why did Linda Fisher not come today?
Mr. Meiburg. Linda Fisher is recused on this case, because
she worked for Monsanto in the 1990s.
Senator Mikulski. So here we are with Region 4, in Atlanta.
One of the biggest environmental cases is Anniston, Alabama. It
has been a lingering issue for a number of years, and the
regional administrator cannot do anything about it, because he
is recused. I honor the legal recusing, but it means that we
have essentially appointed somebody to head Region 4 that
cannot do anything about Anniston.
Then the deputy helper to Administrator Whitman is also
recused, because they worked for Monsanto. Well, this is just
loaded with conflict of interest here.
I am not going to ask you to comment. You are a
professional civil servant.
But, Senator Shelby, I just wanted to bring this to your
attention. I am----
Senator Shelby. You are absolutely right.
Senator Mikulski. I am very troubled about this, that
nobody can do anything, because they are recused, because of
what-all they were doing. Now, I am going to ask the second
one.
So who is in charge of Anniston, Alabama? Who can come in
with clean hands, and not be recused over this, and excused
over that? Is it you, Mr. Meiburg?
Mr. Meiburg. Senator, I have the day-to-day decision-making
responsibility.
Senator Mikulski. Are you in charge of this?
Mr. Meiburg. Yes, ma'am.
AUTHOR OF CONSENT DECREE
Senator Mikulski. Now, who is the architect of the consent
decree?
Mr. Meiburg. The consent decree was negotiated between the
Justice Department, and, obviously, with our considerable
involvement, and Solutia, to come up with a good consent decree
in this case.
Senator Mikulski. So who was the architect of the consent
decree, the Department of Justice, or EPA?
Mr. Meiburg. I think the best answer to that would be: The
EPA is the one who was responsible for working on the terms of
the consent decree, and the substantive terms, and they got
legal assistance in this matter, as in all the matters that we
are involved in, legally from the----
Senator Mikulski. And that is you?
Mr. Meiburg. I did not negotiate the consent decree on a
daily basis, but supervised the----
Senator Mikulski. But who was the architect of the elements
of the consent decree? Was it you, or was it someone else? And
if there was, who was the ``someone else''?
Mr. Meiburg. I want to make sure I am properly responding
to your question.
Senator Mikulski. Well, let me tell you what I mean by
``the architect.'' The architect is the one who designs the
framework. It could be a building; it could be a social
program. They are the designers. Then they bring in the lawyer,
or the title settlement guy, or whatever.
So I am asking you: Who was the architect of the content of
the consent decree?
Mr. Meiburg. This may not answer your question, but if it
doesn't, I will try to respond more----
Senator Mikulski. Yes, please----
Mr. Meiburg [continuing]. Precisely.
Senator Mikulski [continuing]. To the best of your ability.
Remember, this is not a spring hazing. I am trying to parse
this out, coming back to what troubles me here. Go ahead.
Mr. Meiburg. Thank you, Senator.
The architect, or the plan that we followed in issuing this
consent decree is, in fact, the national contingency plan that
we use in conducting Superfund cleanups. And to the extent that
there is an architect that we followed, or a blueprint that we
followed in constructing the consent decree, it was the
national contingency plan, our objective being----
Senator Mikulski. That is the architecture, but who was the
architect? Was that you, or was it Palmer, or was it Fisher, or
was it Whitman, or was it somebody else?
Mr. Meiburg. To the extent that there is a responsible
official for the consent decree--the Administrator is not
recused. She is aware of this particular situation. But to the
extent that there is an individual who would bear primary
responsibility, that would be me.
Senator Mikulski. Okay. Then who did you get the sign-off
from? I mean, did you call Administrator Whitman, talk to her,
say, ``This is what we are doing on Anniston, Alabama''? Again,
I am not being sarcastic, please.
Mr. Meiburg. No, I understand. We consulted in our own
organization, with our Assistant Administrator for Solid Waste
and Emergency Response, which is Marianne Horinko. We consulted
with our Counsel's office. We consulted with the Department of
Justice, to all get signed off on the decree.
Senator Mikulski. That is the national contingency.
Mr. Meiburg. Yes, ma'am.
Senator Mikulski. Did Palmer have to sign off on anything?
Mr. Meiburg. No, ma'am.
Senator Mikulski. Would he ordinarily have signed off, and
would he ordinarily have been the person in charge?
Mr. Meiburg. Yes, ma'am.
Senator Mikulski. But he had to be recused. Would Fisher
have been involved in working with this, but she had to be
recused? So, therefore, did this consent decree and its basic
content go directly to Administrator Whitman?
Mr. Meiburg. Administrator Whitman has been briefed on the
general situation with respect to Anniston, but she has not
reviewed the terms of the consent decree.
Senator Mikulski. So who has? Just you?
Mr. Meiburg. I have; the Justice Department has; my own
legal staff; my Regional Counsel; my Waste Management Division
has been involved in reviewing those things, yes, ma'am.
Senator Mikulski. Is that a usual way for a deputy
administrator in the region?
Mr. Meiburg. Yes, ma'am, it is. It is not at all unusual in
regional offices that deputy regional administrators or
regional administrators are involved in large complex sites.
Senator Mikulski. Well, I want to go to a second round.
But, Senator Shelby, do you see the point that I was
getting at here?
Senator Shelby. Absolutely, Madam Chairman. I think that
was an excellent point, and I will still pick up on that. I
have some questions, too, on that area, but you got into it
before I did.
Senator Mikulski. But I am going to turn to you for a
second round. I just want to ask one other question of Mr.
Meiburg. I think we might have to just hold a hearing on
regions, and who is in charge, and delegation.
Senator Shelby. And who is responsible for this? In other
words, who is responsible for this?
SUPERFUND SITE DESIGNATIONS
Senator Mikulski. That is exactly right. This is with great
respect to Mr. Meiburg, and the professional expertise he
brings, but behind so many people. There are so many conflicts
of interest. From the deputy administrator, to the Regional
Administrator, who has to recuse on this and has to recuse on
that, I feel it is very troubling, and actually
uncharacteristic of the administrator.
But here is my question: Why has not Anniston gone to
Superfund? Because we have seen potholes go in the Superfund
site faster.
Mr. Meiburg. Senator, the reason that this is not on the
National Priorities List is because we have been able to
achieve through this consent decree all of the steps that we
would have taken had we listed the site on the National
Priorities List.
We have had, I know, different opinions on this within the
community, but there is some significant representation we have
had from the leadership of the community expressing concern
about that. The part the community is united on is that
everyone wants the cleanup to proceed as quickly, and as
expeditiously, and as scientifically and technically sound a
way as possible. We believe this consent decree gives us the
ability to do that, and do everything we would do if it were
listed on the NPL.
Senator Mikulski. Are you telling me that you would do
everything--that the consent decree is a substitute for
declaring Anniston, or spots in Anniston, a substitute for a
Superfund site, for a designation? When you use the National
Priority List, that is really the official term for Superfund,
am I correct?
Mr. Meiburg. Yes.
Senator Mikulski. So you are using the consent decree as
kind of a proxy for a declaration of a----
Mr. Meiburg. That is correct.
Senator Mikulski. But in a Superfund site, or national
priority list, is not a geographic area the usual and customary
designated area? And in this consent decree you are only doing
hot spots?
Mr. Meiburg. Senator, in the consent decree--and it speaks
to Senator Shelby's question about comprehensive--the point of
the remedial investigation feasibility study is to look at the
entire area affected by the site, which can go all the way down
into Choccolocco Creek, and down into Lake Logan Martin. So it
is really a very broad and extensive area that is being
studied.
Senator Mikulski. Well, I have other questions.
But, Senator Shelby, why do you not pick up for a second
round?
CONSENT DECREE
Senator Shelby. Thank you, Madam Chairman.
Let us go back to the consent decree, and who was involved
in it. The Chairman here was asking a very important question.
If you have so many conflicts here and there, what we would
like to know for the record--and you can furnish this to the
committee; you might not have it today--step by step, is: Who
was involved in the creation from EPA's standpoint, and
Justice's standpoint, in this consent decree? Was it people who
later recused themselves from testifying, or from maybe signing
off on it finally, but had input into this?
One of the real problems in Anniston, honestly, and the
Chairman, Senator Mikulski, touched on this very deeply, is
trust. Do the people have any trust and any faith in this
situation, in other words, in the problem being cleaned up, as
it should be in Anniston, Alabama?
That is part of the problem here, and then this is
exacerbated by the idea of so many people having conflicts. So
we would like to know who was involved in the creation of this
consent decree.
You know the old story, the fox watching the hen house.
Gosh, these could be some big foxes there watching the hen
house, or maybe they were involved in this architecture, this
consent decree. Maybe they were. I do not know that. But for
the record, I think we want to know, because trust goes right
to the bottom of it, and there is no substitute for it.
How can we today, or how can you, as representing the EPA,
assure the people at Anniston, Alabama, or any other site
around the country, that this is not going to be a sham
cleanup, that this is not going to be somebody who can walk
away from it, and so forth?
I think that is a very important question, because they
have no faith. They would have no faith in a sham cleanup,
because they have seen what is going on before, where facts
were hidden from the people over the years, not just by the
Federal agency, but by the State agency, and by the company,
the perpetrator itself, after they knew all these things.
Do you understand where I am coming from, sir?
Mr. Meiburg. Yes, sir, I think I do. Let me try and address
the two questions about who was involved----
Senator Shelby. Sure.
Mr. Meiburg [continuing]. In the negotiation of the consent
decree, and then the larger question of trust.
Senator Shelby. All right.
Mr. Meiburg. In terms of the negotiation of the consent
decree, the staff who work in Region 4, our attorneys and our
technical staff, as well as the Department of Justice staff,
who follow standard models that we use in negotiating consent
decrees, were the ones who were involved, and who negotiated
this consent decree.
If you need exact names, I would have to supply that for
the record. But it was a staff-driven, staff-led process in
working with the company, as we do in many, many Superfund----
[The information follows:]
Staff Involved in the Creation of the Consent Decree
U.S. Environmental Protection Agency
Stan Meiburg, Region 4, Deputy Regional Administrator, (acting RA
from January 21, 2001 until January, 2002)
Marianne Horinko, Assistant Administrator for Solid Waste and
Emergency Response
Phyllis P. Harris, Regional Counsel and Director of Region 4,
Office of Environmental Accountability
Richard Leahy, Chief of the Office of CERCLA Legal Support in
Region 4.
U.S Department of Justice
Thomas L. Samsonetti, Assistant Attorney General for the
Environment and Natural Resources Division
Senator Shelby. Sir, did anybody that later recused
themselves because of conflicts have any input at all, one
scintilla of input into this decree?
Mr. Meiburg. No, sir.
Senator Shelby. You mean everybody was just as clean as a
whistle; is that what you are saying?
Mr. Meiburg. That is correct.
Senator Shelby. That means nobody had any conflict.
Mr. Meiburg. I have had no discussions on this consent
decree with anyone who has recused themselves on this case.
Senator Shelby. Well, you said you did not, but what about
other people? Do you know that?
Mr. Meiburg. Not to the best of my knowledge.
Senator Shelby. Well, is it not very important, going back
to trust again, that people believe that this decree is above--
that this consent decree, this decree by agreement, that it is
meaningful, it is comprehensive, and it is going to do the job?
In other words, that it is not in any way a sham?
Mr. Meiburg. Yes, that is very important, that it speaks to
your larger issue of trust. My own sense is that trust is
something that takes a very long time to build, and it is----
Senator Shelby. In this case, it is going to have to be
built by the deed, not the word, right?
Mr. Meiburg. Yes, sir. That is exactly right.
PCB LEVELS
Senator Shelby. All right.
Dr. Falk, I was asking you some questions earlier. We heard
time and again that the PCB levels in the blood of the
residents in Anniston are higher than normal. Could you explain
to us what is considered normal, and then compare and contrast
that with the levels of Anniston residents?
If you could go a step further, if you could, tell us why
high PCB levels in someone's blood is bad. You have the
technical ability to do that.
Dr. Falk. Okay. I think going back to the late 1970s, and
based on the distribution of blood levels of PCBs in the
population, the level of 20 was considered to be elevated, 20
parts per----
Senator Shelby. The level of 20.
Dr. Falk. Yes, 20 parts per billion----
Senator Shelby. Per 1 billion?
Dr. Falk [continuing]. Yes, in the blood serum was
considered elevated. Now, recognizing that, since the PCBs were
no longer in production and slowly decreasing in the
environment over the years, we think that the background levels
in the population have correspondingly diminished over that
time.
Senator Shelby. Excuse me. You said ``we think.'' What do
you know, not what you think?
Dr. Falk. Sir, let me----
Senator Shelby. Okay.
Dr. Falk. In our toxicology profile, in which we summarize
this information, the background levels from more recent
studies seem to be in the range of between, let's say, three
and eight, or three and ten parts per billion.
So we are hoping that later this year, when the data from
the National Health and Nutrition Examination survey comes
forth, we will have a better randomly selected representation
of the national population--I mean we have a good comparison
level, but we think it has probably been coming down from that
twenty level towards about ten.
Senator Shelby. When was it in the 20 level?
Dr. Falk. That was in the late 1970s, when----
Senator Shelby. In the Anniston area?
Dr. Falk. No. That is what we would consider elevated----
Senator Shelby. Okay.
Dr. Falk [continuing]. In general. Now, I think among
Superfund sites across the country, the levels that we see in
Anniston, in people, are probably considerably higher than in
most any of the sites.
Senator Shelby. Say it again. You are saying, as I
understand it--and these are your words, and you correct me if
I am wrong----
Dr. Falk. Yes, sir.
Senator Shelby [continuing]. That in the Anniston area,
that it has a high--the people have a higher level of PCBs in
their blood.
Dr. Falk. Yes. For the group, the average level is higher,
peak levels are higher, the range is higher. Not every person--
--
Senator Shelby. I understand that.
Dr. Falk [continuing]. But the average is higher. For
example, I think I may have mentioned this quickly before, but
in the very first evaluation of the first 103 people done in
1995, 1996, by the Alabama Department of Public Health, the
average level of those 103 people was 24. So you see, the
average level was above what we would consider elevated.
Senator Shelby. And it would be higher elevations in
certain areas of Anniston where people lived, as opposed to--
you know, it is a big county, Calhoun County. Is it everywhere,
or do you know?
Dr. Falk. Well, the elevations are in relation to----
Senator Shelby. The population.
Dr. Falk. In West Anniston, in relation to the site. I
think the complexity for us, and the reason why I am personally
pleased to hear you speak in terms of comprehensive evaluation,
is that sometimes when we have, let us say, a release from a
plant, you see a very steady but very clear change, in relation
to distance--and I think in Anniston, it is not quite so clear.
There are spots where the levels are higher. There are spots
where the levels are lower.
It is not--it is not always easy to predict for any
particular yard or person exactly what that PCB level would be.
So I think one actually, in Anniston, does have to do a very--
--
Senator Shelby. A comprehensive evaluation would bring all
that out, would it not?
Dr. Falk. Yes. Exactly.
HEALTH EFFECTS OF HIGH PCB LEVELS
Senator Shelby. Sir, what does a higher level of PCBs in
the blood serum mean? What is the significance of that?
Dr. Falk. Sometimes we have chemicals at Superfund sites
that cause very distinctive abnormalities. So, for example, we
have the Superfund site where there is asbestos exposure, and
one can see very characteristic changes in the lungs. So it is,
you know, one-to-one, a very tight relationship between
exposure and the particular health effects seen.
What we have learned with PCBs, and this relates not just
to the work that we have done in the Great Lakes project, but
that others have done as well, is based both on animal studies
and also based on human studies. There are concerns about
neurobehavioral, developmental effects in the young. There are
concerns----
Senator Shelby. Developmental effects of babies and
children, right?
Dr. Falk. Learning----
Senator Shelby. Learning disabilities.
Dr. Falk. Yes. And they are not distinctive or they are not
different from many impediments that might occur for other
reasons, but statistically, one sees a greater likelihood. The
same thing has been reported for immunologic function. We see
changes in immunologic tests, but not a single specific----
Senator Shelby. Weakening of the immune system?
Dr. Falk. Weakening of the immune system. There are
concerns about the----
Senator Shelby. What about the unborn? What about----
Dr. Falk. I think the developmental effects----
Senator Shelby. Do you think that is there?
Dr. Falk. The development effects start with studying the
effects in utero, where the mothers have been exposed to PCBs,
and that is clearly the very vulnerable period.
What I am trying to say is that there are effects that are
seen. They are not, in most cases, distinguishable from similar
effects that might be seen for other reasons, but they occur in
increased rates.
Senator Shelby. Thank you.
Thank you, Madam Chairman. I will wait for the others.
TIMING OF EPA ACTION
Senator Mikulski. Those were excellent lines of
questioning, Senator Shelby, and in many ways paralleled my
own.
Mr. Meiburg, let me come back to EPA. Essentially, my
questions are: What took EPA so long? On page four of your
submitted testimony, you go into describing the activities of
EPA. The last paragraph says, ``Over the years, EPA has
attempted to work closely with ADEM,'' which is the Alabama
Department of Environment, ``and other agencies to maximize the
resources the government is able to bring to bear in Anniston.
EPA and ADEM followed a basic division of labor for Anniston,
with the State taking the lead role in the remediation of the
Solutia plant property, while EPA handled all other areas.''
Well, when did EPA become actively involved in Anniston?
Could you give me a chronology? And then why did it take from
all of these years, that--I know the community has been active,
and raising concerns, and taking it to Alabama--that we do not
get a consent decree until March 25, 2002?
Mr. Meiburg. Senator, I can supply a detailed chronology
for the record. But the larger question you have asked, ``Why
did it take so long,'' is probably the most difficult question,
as I look back on it. And I think it is fair to say that if we
knew--if we had known some years ago what we now know about the
site, then I think the course of action might have been
different.
Our specific involvement really dated from 1999. We had
requests in the mid-to late 1990s, particularly from citizens
there who were pointing out that the extent of the
contamination, they believed, was more extensive than had
previously been looked at.
I think that it is fair to say that--up to that time, that
generally the view had been that there was contamination in--
going from the plant, down into Snow Creek, down to Choccolocco
Creek, and into Lake Logan Martin, along the watercourse, and
that the extent of the contamination throughout the
neighborhoods and the surrounding area, and flood plains, I
think came as a bit of a surprise to us.
And the Alabama Department of Environmental Management,
asked us to help come in in 1999, when they were not able to
address some of the questions they wanted to get answered
through the terms of their RCRA permit. And then we had the
request from the Governor of Alabama in 2000 as well. So
really, our most active involvement there at the site, under
the Superfund program, dates from the mid-1999 period.
[The information follows:]
ANNISTON PCB SITE CHRONOLOGY
------------------------------------------------------------------------
Dates Actions taken
------------------------------------------------------------------------
1979-1980................................. Eckhardt Report (Waste
Disposal Site Survey)
released citing Monsanto's
Anniston Plant Landfill as
a facility which handled
hazardous waste.
ADEM prepares CERCLA
Preliminary Assessment and
Site Investigation reports
on the Anniston Plant
Landfill.
1980-1981................................. Monsanto submits RCRA Part A
Application and is granted
RCRA interim status to
continue operating.
1982-1983................................. EPA file review and
preliminary CERCLA Hazard
Ranking System scoring.
Based on available data,
preliminary score is below
threshold score for
proposal on National
Priorities List.
1984...................................... EPA requests RCRA Part B
permit application
including facility-wide
groundwater investigation.
1985...................................... Monsanto submits Part B
permit application for EPA/
ADEM review and comment.
Alabama Attorney General
discloses PCB contamination
in Snow Creek; EPA defers
cleanup of Snow Creek to
ADEM.
EPA issues RCRA 3008(a)
Order to Monsanto for
failure to implement on
site groundwater monitoring
program consistent with the
RCRA regulations.
ADEM conducts CERCLA
Preliminary Assessment
recommending ``no further
action'' based on status as
active RCRA-regulated
facility.
1986-1987................................. Monsanto submits ``Snow
Creek Sediment Removal
Protocol'' to ADEM.
EPA and ADEM jointly issue
RCRA permit to Monsanto.
1987-1990................................. Monsanto continues to
implement requirements of
RCRA Part B permit
including closure
activities, groundwater
monitoring, and development
of groundwater corrective
action systems.
Monsanto implements Snow
Creek sediment removal.
1991...................................... EPA conducts RCRA Facility
Assessment identifying
solid waste management
units and areas of concern.
1993...................................... ADEM conducts investigation
of PCB contamination in
Snow and Choccolocco
Creeks.
ADPH issues ``no consumption
of fish'' advisory for fish
caught in Choccolocco Creek
between Snow Creek and Lake
Logan Martin.
1994...................................... ADEM conducts Preliminary
Assessment on West End
Landfill.
EPA defers action to ADEM
pursuant to the RCRA
deferral policy.
1995...................................... ADPH and ATSDR conduct
exposure investigation and
health consultations in
February and October.
ADEM negotiates Consent
Order with Monsanto to
determine if PCB releases
have occurred. As a result
of the studies Monsanto
initiates property buyouts
and a relocation program in
residential areas adjacent
to and east of the
facility. Monsanto
constructs sediment pond
and other stormwater runoff
control devices to mitigate
flooding and further
transport of contaminated
sediments in these areas.
1996...................................... ADEM issues second Consent
Order requiring additional
characterization of off-
site contamination; design
and construction of
additional run-off controls
and acquisition of
additional adjacent
properties north of the
facility.
1997-1999................................. Monsanto Company formed
Solutia Incorporated.
Monsanto implements on-site
control measures and
investigation of off site
contamination as required
by the RCRA Part B permit
re-issued by ADEM.
EPA Administrator Carol
Browner received letter
from the West Anniston
Environmental Justice Task
Force, now known as
Citizens Against
Pollution(CAP), asking for
EPA action in regard to PCB
contamination in Anniston.
1999...................................... Solutia continues
investigatory and control
measures required under the
permit.
ADEM requests EPA take lead
role in ``remote'' off-site
remediation areas under
CERCLA. (areas unrelated to
the drainage pathways of
Snow and Choccolocco
Creeks).
Data summaries of extensive
soil and blood serum
sampling, indicating
widespread PCB
contamination in west
Anniston, is submitted by
plaintiffs attorney. This
data was collected as
evidence in a lawsuit filed
againstSolutia.
2000...................................... EPA opens Community
Relations Center in
Anniston and initiates
removal assessment through
extensive sampling.
ADEM responds to soil
disturbance activities at
various PCB-impacted areas
in the floodplains of Snow
and Choccolocco Creeks by
requiring Solutia to
perform corrective actions
in these areas under the
RCRA permit.
Governor Siegelman sends
letter to President Clinton
requesting federal
assistance in remedying the
environmental contamination
and human exposures in
Anniston.
EPA finalizes AOC to require
Solutia to continue
sampling and cleanup of
residential properties to
address short-term risks.
EPA funds Southeast PEHSU at
Emory University to assist
with Continuing Medical
Education in Anniston,
Alabama. Key focus areas
are medical education and
training, telephone
consultation, and clinical
specialty referral for
children who may have been
exposed to
environmentalhazards.
2001...................................... EPA begins negotiations with
Solutia and Pharmacia
(formerly Monsanto) on
Remedial Investigation/
Feasibility Study for off-
site areas to addresslong-
term risks.
Solutia initiates first
cleanup at a residential
property. Other similar
actions were delayed due to
denial of access.
EPA revises AOC to expand
sampling and cleanup areas.
EPA Environmental Response
Team issues Final Summary
of Technical Review and
Evaluation of Potential PCB
Releases. The report is an
independent evaluation of
on-site work to date. The
report indicates several
areas where additional
study and/or work should be
done.
ADEM continues to require
Solutia to address on-site
and off-site contamination
through the RCRA permit.
2002...................................... March 25, EPA lodges Consent
Decree in Federal Court in
Birmingham
April 4-June 3, public
comment period on Consent
Decree
United States will provide
the comments and responses
to comments to the Court
upon completion of the
comment period and ask the
court to (1) enter the
Consent Decree in its
current form, (2) withdraw
the Consent Decree, or (3)
seek to modify the Consent
Decree based on the
comments.
------------------------------------------------------------------------
Acronyms:
ADEM--Alabama Department of Environmental Management
ADPH--Alabama Department of Public Health
AOC--Administrative Order on Consent
ATSDR--Agency for Toxic Substance and Disease Registry
CERCLA--Comprehensive Environmental Response, Compensation, and
Liability Act (also known as Superfund)
EPA--Environmental Protection Agency
PCB--Polychlorinated biphenyls
PEHSU--Pediatric Environmental Health Specialty Unit
RCRA--Resource Conservation and Recovery Act
Senator Mikulski. Well, then I am confused about your
testimony, and your written testimony. I am going to go to
this, because this goes to where there is EPA and where there
is not EPA.
According to page two of your testimony, it says, ``EPA's
involvement with the cleanup activities parallel the evolution
of the Federal laws regarding disposal cleanup of hazardous
waste.'' This was pretty much when Senator Shelby and I were
over in Energy and Commerce.
And Senator, you recall, Jim Florio was the chairman of
that subcommittee----
Senator Shelby. Right.
Senator Mikulski [continuing]. And we were working on this.
Senator Shelby. He comes from New Jersey.
Senator Mikulski. Yes. That is right.
But it says--when this was all being developed, it says,
``EPA first became involved with this facility in the late
1970s, when they were looking at the legal structures for
hazardous waste. In the early 1980s, EPA worked with the State
of Alabama to determine how and under which program to best
address the facilities at Monsanto and Anniston.''
It says the 1970s, the 1980s.
Again, according to the written testimony, ``Between 1980
and 1985, the facility applied for an application for an
operating permit,'' like lots of industrial facilities.
I have some of those facilities in my own State. I know
that is a tough--normally, it is a tough application process,
as it really should be, because it is to do prevention. In
other words, it is tough to get a permit so that you do not get
into the jackpot of pollution.
In 1986, Monsanto got a permit from EPA and ADEM. So they
got a permit to operate, while all this stuff was going out of
the plant into the community. ``In 1985, the Alabama Attorney
General's Office informed EPA that contamination in nearby Snow
Creek was caused by releases of PCBs from Monsanto.'' The AG of
Alabama, in 1985, said this stuff is leaking; the AG.
Later, ``following discussions with the Alabama AG, ADEM
and EPA, Federal action regarding Snow Creek was deferred to
the State.'' 1988, submitted a cleanup plan. They removed 1,000
tons. I could go on.
This, sir, is not 1999. Where was EPA? Either responding to
the needs of Anniston on the oversight that they provided to
the region, and the region to the Alabama Department of
Environmental Management--I presume that is what the ``M''
stands for.
Mr. Meiburg. Yes. That is correct.
Senator Mikulski. Based on this, we were in it. We were in
it. The Attorney General of Alabama was in it. Requesting
Federal help in it. But where was EPA?
Mr. Meiburg. Senator, generally, the State agency, in
looking at this--and I think my testimony attempted to reflect
this--addressed this primarily during the years leading up to
1999.
Senator Mikulski. When did you come to Region 4?
Mr. Meiburg. In 1996.
Senator Mikulski. Okay. So you have been there--so I am
going back historically. The intention in my question--can you
understand how I look at this?
Mr. Meiburg. Yes.
Senator Mikulski. It is that, according to this, the
chronology of your own testimony says EPA knew about this, EPA
was involved with the highest level of the legal community in
Alabama, and the legal enforcement, in terms of the attorney
general who himself asked for help on Snow Creek, and Snow
Creek was both literally and metaphorically what was happening
in other hot spots around Anniston. Nothing, nothing. Divisions
of labor between EPA and ADEM. Nothing. Nothing.
In the meantime, this is leaking, hemorrhaging all the
while into the community, into the playgrounds, into gardens,
into creeks, into communities. People had brain tumors.
Children were born with defects. Young men were dying. And it
is hard enough in this world for young black men to survive,
let alone when EPA is still doing divisions of labor.
Well, whatever way you divided those labors did not seem to
work. When you got there in 1996, did you find under every rock
there was another rock, and under that rock was PCBs?
Mr. Meiburg. Senator, I think that probably the best way to
answer your question is that it is absolutely true that the
State has known about the site. It has known about particularly
the landfills and other areas where PCB production had
occurred, which ceased in 1971, but where PCB production
occurred, that the landfills were there, and they needed to be
remediated.
There was a substantial amount of activity that went on
during the 1990s on the facility site itself to try to cap the
landfills and stop the migration off the site into the
community itself. That went on under the authority of RCRA
during the 1990s as part of the permit process that you
mentioned, and part of the corrective action. So there were
actions that were taken to try to limit the further releases.
The thing that I think is the most new to us was the
extent, the geographical extent within the community itself,
and that really did not come to our attention until the mid-to
late 1990s.
Senator Mikulski. Well, time is moving on, and we want to
hear from Alabama, and the Department of--as well as the
people, but I have just a few other questions, and then a final
round by my colleague.
TIMING ON ATSDR PARTICIPATION
Dr. Falk, we are talking now about public health, and also
when the agencies got in. When and how did ATSDR become
involved in the Anniston situation?
Dr. Falk. Yes, I came to ATSDR in 1999. My understanding is
that the agency became involved in 1995 by working with our
cooperative agreement partner, which is the Alabama State
Health Department.
ATSDR becomes involved working on health issues, basically,
through three primary ways.
One is a site is declared a Superfund site, if it is on the
NPL list. We have to evaluate those sites. That triggers ATSDR
involvement. Second, is if there is a petition request that
comes into the agency, and we evaluate petitions to look at
sites. We roughly----
Senator Mikulski. You mean citizen petitions?
Dr. Falk. Citizen petitions. Under the CERCLA legislation--
--
Senator Mikulski. That is right.
Dr. Falk [continuing]. Citizens can petition.
Senator Mikulski. The right to know, the right to be heard,
the right----
Dr. Falk. Exactly.
Senator Mikulski [continuing]. To be protected.
Dr. Falk. We respond to all the petition requests, and we
follow up on and investigate about 50 percent of those that
come in. So I am presuming that there was no formal petition at
this site before 1995, and I am assuming that.
The third way in which we become involved is if we are
alerted to the site either by State partners, or local
officials, or EPA, or somebody else. So I am assuming that in
1995, the initial involvement came by way of the Alabama State
Health Department.
In terms of my own involvement, when I came to ATSDR on in
1999, as I mentioned, we received the request from the
community that had already, working among themselves, and with
their advisors, received blood samples on these 2,970 people,
and they had developed that information themselves and
requested ATSDR assistance in its evaluation.
This is not--let me say, this is not the usual course for
ATSDR engagement at a site. Usually, we consider the need for a
health study; we go out and we discuss it with the community,
the health department. And then we say, ``Let us do a health
study. Let us design it. Let us get input,'' and so on.
In this case, this was unusual, and for me coming on
relatively new, that there was material on a substantial number
of people, including blood tests----
Senator Mikulski. That the community themselves had
developed.
Dr. Falk. The community themselves had developed it.
ACTIONS BY THE COMMUNITY
Senator Mikulski. It shows how desperate they were, because
this is a very costly, and expensive, and technical process. So
a poor African-American, a poor--of modest means, obviously not
poor in spirit, you know, obviously not poor in spirit, had to
go somewhere where there was no government anywhere to help
them get their blood test, that they knew about.
Dr. Falk. Right. But they did----
HEALTH STUDIES
Senator Mikulski. I am not finger pointing at you.
Well, let me go on here, because we do want to--we have to
move on to the other witnesses.
I note that in the consent decree that the decree does not
require Solutia to fund health studies. And I want to be clear,
because each and every--both of you gentlemen have used
``medical treatment,'' and I am not parsing words here, because
they are two distinct things, and Dr. Falk has both an M.D. and
a masters of the public health. You know what I am talking
about.
Treatment is provided in physician and clinical services,
but the public health studies are ordinarily provided or
mandated by government to know what kind of treatment people
need, and to provide ongoing evaluation to see if the situation
is getting worse or better, the classic epidemiology done by
public health agencies.
Do you believe that there is--that we need to have ongoing
health studies of this community? And who then should provide
it, since nobody asked Solutia to do it?
Dr. Falk. There are several things I would like to say
about that. First off, one can, knowing the serum PCB levels,
and what is known about PCBs, at least understand what the
potential effects might be.
One of the issues, which I think is very important, is
fully characterizing what the PCB levels are in everybody, and
what the extent is. That gets back to the issue of
comprehensive. If one does not know that somebody--if somebody
has never been tested for PCB levels, one does not know that
they have been exposed, et cetera. So that is one issue that I
think it is very important to fully characterize, so people
will understand whether they have been exposed, they carry
PCBs, or not.
The second issue is: Health studies can be done for
different purposes. They can be done for purposes of research.
Can we learn more about the health effects of PCBs? I think
that is one issue that could certainly be looked at. In a
sense, can we learn something here that we have not learned in
other places? And second, can it help the community understand
what the potential effects are in terms of assessing what the
effects are in the community?
I think we stand very ready----
Senator Mikulski. So where are we coming with those three
things? We are not going to do research.
Dr. Falk. Right. So we would be very ready--I mean we have
tried to do this----
Senator Mikulski. Very ready to do what?
Dr. Falk. To work with the community, work with the State--
--
Senator Mikulski. To do what?
Dr. Falk [continuing]. In conducting any health studies
that would be appropriate. Health studies can take a long time.
Health studies can be complicated in an area like this, where
one is looking for statistical increases. I think we would be
prepared definitely to work with the community, and work with
the State health department to design such a study, if that----
Senator Mikulski. And no one has asked you to do it? Do you
have the authority to volunteer and be entrepreneurial, to say
``This is what we could do,'' and convene your own meetings?
Dr. Falk. We do, act as--you say entrepreneurial, or make
opportunistic suggestions, but I think you cannot do a health
study without the participation of everybody in the community.
I think in a situation like this, in a very complex situation,
it really----
Senator Mikulski. ``Everybody in the community'' are the
residents, in my mind. That ``everybody in the community'' is
not government. So if they are ready to go, then we will talk
more about that.
Dr. Falk. We would be happy to work with them on that.
Senator Mikulski. Thank you, Dr. Falk. I have other
questions, but we really have to get to the second panel.
I am going to afford you----
Senator Shelby. That would be great.
Senator Mikulski [continuing]. Another round, Senator. But
I must say, I am troubled that the decree does not require the
Solutia to fund health studies, and that the decree does not
order wide-scale cleanup that is a hotspot-focused one. And I
am very troubled by this conflict of interest issue, but there
you go.
Senator Shelby. I will be brief. I share your remarks, as
you know, and again, I just want to raise this again.
Where has EPA been, as Senator Mikulski said? Where has the
Alabama Department of Environmental Management been? We think
that we know the answer to those questions: Absent.
The real question is: Where will they be in the future? We
ask: Where will they be in the future? I believe we have to
have a comprehensive health study of the community, and I
believe, sir, the EPA can do that. And if you do not do it,
there is not going to be any trust by this Senator.
I cannot speak for the chairperson here, but I can read the
questions she is asking, and the tone of the questions. I do
not believe there is going to be any confidence in this
committee, which is the funding committee for EPA.
If you are not going to do this right--you have botched it
in the past. The Alabama Department of Environmental Management
has botched it in the past.
What are you going to do about it now? We hope you are
going to do it right, because it is the right thing for the
people.
Thank you, Madam Chairman. I know we have some others.
Senator Mikulski. Thank you.
Well, again, we could ask additional questions, but we want
to thank you for coming today, and I think this has been a very
good exchange. But I think there are lot of flashing yellow
lights over this, over why it took EPA so long to really stand
sentry on this issue, and get action. I think its current
management structure, where Region 4--and this is one of the
biggest issues, and then one of the ongoing issues.
Well, let us hear from Alabama now, and let us hear from
the community. This first panel is excused.
We now call Mr. Stephen Cobb, from the Alabama Department
of Environmental Management, as well as Mr. David Baker, the
President of the Community Against Pollution, the grassroots
organization in Anniston.
While our witnesses are taking their seats, I want to note
that Mr. Baker is Mr. David Baker, Sr. He grew up in Hobson
City, Alabama, was in the Navy, honorably discharged, and
worked in health care issues at a local municipal hospital, and
came out of retirement to work on this issue, and has been one
of the lead advocates on this.
We know he lives in Anniston with five children. We also
know that he is accompanied today by Shirley Williams Baker,
who works with him on this great task.
Mrs. Baker, would you stand so we could acknowledge your
presence, ma'am? And we welcome you.
We note also that Mr. Baker is a member of the NAACP, and
the Coalition for Black Trade Unionists, and has been a life-
long activist.
Also here today is Mr. Stephen Cobb, from the Alabama
Department of Environmental Management. He is the Chief of the
Hazardous Waste Branch, since August of 1999. He comes with a
background really of environmental engineering, with degrees in
agricultural engineering from Auburn undergraduate, and then a
masters in agricultural engineering, and a minor in civil
engineering, and is a registered professional engineer, and is
a certified public manager.
So we welcome you, Mr. Cobb.
Mr. Baker, we have been listening from government all
morning. What I am going to do is ask you to testify, and then
ask Mr. Cobb to be the second speaker, and just go on, right
on, and then we will go to our questions.
So, Mr. Baker, we welcome you, and ask you to proceed, sir.
STATEMENT OF DAVID BAKER, SR., PRESIDENT, COMMUNITY
AGAINST POLLUTION (CAP), ANNISTON, ALABAMA
Mr. Baker. Thank you, Madam Chairperson.
Senator Mikulski, Senator Shelby, thank you for this
opportunity to testify before you today. I will summarize my
remarks today, and would like to enter my entire testimony into
the record.
A public debate on the Federal Government's responsibility
to help my community has been a long time coming. I would also
like to take this opportunity to just recognize a good friend
of mine, and my ex-boss, Bill Lucy, the Coalition of Black
Trade Unionist's president, as well as the International
Treasurer, from Virginia, who is present here with me, and my
vice president, James Hall. I would like to thank the
Environmental Working Group here in Washington, D.C., who have
worked with us there in Alabama, under Mr. Ken Cook's
direction.
The people of Anniston, Alabama, have waited for more than
40 years for the Federal Government to step in and help us
clean up the PCB contaminants in our backyards, and in our
playgrounds, our rivers, our creeks, and in our bodies.
Unfortunately, after 40 years of waiting, I am here today to
report that the Federal Government has failed the people of
Anniston, and left the fox guarding the hen house.
This bailout that I speak about today is not a consent
decree. I would like to take this opportunity, Madam
Chairperson, to just let you know that after sitting here
listening for the last hour or so, or the last 45 minutes, I am
somewhat disturbed at some of the statements that have been
made, and I am somewhat disturbed that if half of the people
that were affected by this were here today, you would see tears
in their eyes. So I have to cry for them. I looked at my vice
president, as people testified.
Anniston, the West Anniston area, geographically, is a
pretty much mixed area. The landfill that sits in our area sits
between Monsanto and Hobson City, as well as Central City, and
part of Nova Street. Geographically, it sits across the street,
adjacent from the plant. It did not take us, as rocket
scientists, as a community, to recognize the fact that when
they began to tear Sweet Valley and Cobbtown down,
understanding that it had been contaminated, it did not take an
engineer that lived in our community to tell you that the
contaminants that went to Choccolocco Creek, and onto Martin
Lake, it did not take an engineer to tell us that West
Anniston, in its entirety, was contaminated.
In 1995, after finding out Sweet Valley and Cobbtown was
contaminated, there were efforts made to move those people out
of the area. Successfully, and after a long duration, they were
properly moved. People were bought out by Solutia, Monsanto,
and moved into other areas. Many of them left with a mortgage.
These are people whose homes were given to them by their
parents, their great-grandparents. Many of them had to leave
furniture and carpet inside their homes. Churches that were
then located in that area were also torn down, and then split
between the community.
This company that I speak about today, and this problem
that I speak about today, when you find that it is a bailout,
after knowing that all these years that people knew and did
nothing about it, hardens my heart. It is obvious that they
thought that this could continue, and no one would pay any
attention to the problem. This is why we are here today. It is
not because of an oil spill that was off the shores of the
Gulf. This is about someone deceiving the community.
Over the last 30 to 40 years of my life, prior to me
leaving and going to New York to become a union rep, I found
myself eating from Choccolocco Creek, many fish, as a child,
playing in those drain ditches, and as many other children.
Just a few days ago, when the courts finally gave us justice by
finding this company guilty of all these notorious crimes, the
EPA then decided to have an enforcement order.
We knew that there was an attempt made prior to this to
have these enforcement orders done, to make this enforcement
order come to be, but surprisingly, what scared us was when
they found them guilty, it popped up. From where I stand, and
from where our community stands, if it walks like a duck, and
it quacks like a duck, it has to be a duck.
Why did you wait until we had found them guilty in a court
of law, and then turn around and do an enforcement order, and
claim that there is no way that you can get rid of it, and this
is the best deal you could have? As a labor leader, I remember
in negotiations, when you are negotiating, if you do not like
what is being said, you continue the negotiations. If you have
been negotiating for 2 years, what was the hurry just at that
particular time?
$3\1/2\ million, they keep jumping up saying that they want
to give us for our special education. Sure, we need it. We need
this special education money, because we have children who
cannot learn, but we also have children who are handicapped; we
also have children who are just being born deformed. We also
have people right now, that are 30 or 40 years old, that have
cancer.
Just a slight story: Just the other day, the EPA came into
the community and told the lady across the street from where I
live--her son is 3 years old--``Do not let him go outside and
play in the yard, because your yard is highly contaminated.''
We were given a warning, an advisement warning by ATSDR. We
have been living this way for the last 4 years. The last 4
years; we have had to take off our shoes when we got ready to
go into the house. Our children cannot play on the grass, so
they play in the streets.
Our children should wash their balls if they are playing
outside, wash the dogs if they wanted to play with their own
pets in their yard. We cannot plant a garden in our yard
anymore. Many of the times we have been told, ``Well, you can
plant the garden, but you have to be careful how you plant
it.'' We have people planting collard greens in five-gallon
buckets just to enjoy the land that they live on.
No one will loan us money on our property. No one wants to
move into our community, and believe me, nobody really wants to
move from the community. All we ask is that the landfill that
caused this problem--and it is the cause of the problem. It is
buried. Many times today I have heard them talk about just
PCBs, but it is not just PCBs that is buried in that landfill.
They buried lead, two lead vats that we know of; mercury. They
released it on the community. And for 40-something years,
people have looked the other way.
Why is the government so interested at this point to run in
with a last-minute savior to bail Monsanto out, I do not know.
But I thought that when we went to court the other morning--
when I was called and told that we had won the case, that we
had won, and I got up in the bed, and I began to cry. It was
the first time after 4 years that some relief had come.
And then there is a 180-degree turn. Monsanto ran right
into court right after this decree order was signed, and said,
``Throw out 3,500 complainants' cases,'' and asked the judge to
do so.
Why did they give them leverage? I do not know. Was it done
intentionally? I cannot say. But the other night when they told
the community and my neighborhood that they had the best deal
in the world, it did not work. And I hope today that you have
heard enough, and I think that you have presented enough
yourself.
You understand that Anniston is not in South Africa,
Rhodesia, or some other totalitarian country, that we are
Americans, and we live in Anniston, Alabama, and all we want to
do is live a normal life.
Yes, we do need a health study. We do need a health
assessment. We need a health clinic. We need everything that
could be offered, because we have suffered so long.
I thank you.
Senator Mikulski. Well, thank you very much, Mr. Baker.
That was a pretty compelling conversation.
[The statement follows:]
Prepared Statement of David Baker
Summary
Senator Mikulski, Senator Shelby, thank you for this opportunity to
testify today. I will summarize my remarks today and would like to
enter my entire testimony for the record.
A public debate on the Federal Government's responsibility to help
my community has been a long time coming. I also want to recognize Mr.
Lucy from CBTU and thank him and his organization for all their support
on this issue.
The people of Anniston, Alabama have waited more than 40 years for
the Federal Government to step in and help clean up the PCB
contamination in our backyards, our playgrounds, our rivers and creeks
and our bodies. Unfortunately, after 40 years of waiting, I am here
today to report that the Federal Government has failed the people of
Anniston and left the fox to guard the henhouse.
In our opinion, EPA made a 180 degree turn from their original
proposal to cleanup Anniston's PCB contamination. We do not believe the
consent decree or ``Monsanto \1\ bailout'' is in the best interests of
our community, but instead serves the needs of Monsanto. EPA has handed
over their responsibility to protect our health and our environment to
the same corporate polluter that has misled us for over 40 years. EPA
must go back to the drawing board and start over.
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\1\ References to Monsanto include Monsanto, its corporate spin-off
Solutia and its parent company Pharmacia.
---------------------------------------------------------------------------
This hearing today is critically important to help the people of
Anniston shine a bright light on what decisions were made and by whom
at EPA and the Department of Justice. Documents show the original
consent decree proposed by EPA would have held Monsanto accountable.
Now, a year later, we want to know why such dramatic changes to the
original proposal for a consent decree were made.
Madame Chairwoman, you are a former community activist and I know
you have had your own battles with the Federal Government to ensure
your constituents are not exposed to PCB contamination. You can
understand the struggle my community has been through over the last 2
decades trying to bring justice to our residents.
Thousands of residents of Anniston have PCBs in our blood and
hundreds of children in our community have learning disabilities and
behavioral problems. We have high incidences of cancer, diabetes,
asthma, thyroid problems and lupis. We can't grow any food in our
gardens and our children can't play in our yards. Many of us can't
drink water out of our faucets. We can't sell our houses, our churches
have been closed and our neighborhoods are dying. All because our
community is saturated with PCBs.
The story of Anniston is not unique. There are thousands of people
in thousands of communities across the country that face similar
contamination, some whose environment and bodies are burdened with
chemicals we know, like PCBs, and some who are being exposed and
contaminated by new chemicals whose health effects are barely even been
known.
Anniston represents the many communities faced with toxic chemicals
in our air, water, and soils without the public's knowledge. ADEM
recently fined Solutia, for the first time ever, $87,000 for not
reporting chemical discharges. This is just a slap on the wrist for the
company and is an example of how current State and Federal
environmental legislation is riddled with loopholes. As Anniston shows,
corporate polluters are not held accountable for what they are
releasing and the public is not told what the health impacts may be
from these toxic chemicals. Our community is an example that following
the ``hear no evil, see no evil, speak no evil'' approach does not
work.
After trying to get State and Federal officials to help the people
of Anniston for decades, this latest retreat does not necessarily
surprise us. However, in this case, it has directly interfered with our
own pursuit of justice in the State court system. Looking at the
documents now available from Monsanto and EPA, and posted on
Environmental Working Group's web site, we have to wonder if Monsanto
would have cooperated with the court process if they didn't have this
seemingly sweetheart deal in their back pocket?
EPA wants us to believe that their consent decree is the best deal
we will get and will be the quickest path to cleaning up the PCB
contamination in our town. How can we believe EPA with Superfund
cleanups being cut in half this year? Why should we trust EPA to take
care of our town since Anniston is not on the National Priorities List?
EPA won't even finish the scoring because Monsanto keeps trying to put
a bandaid on an elephant and thinking that will solve the problem.
The Monsanto bailout leaves out too many of the concerns of the
community--our immediate need for independent health assessment and
clinic, long-term environmental health and medical monitoring, clean up
of the dumps where Monsanto dumped 10 million tons of PCBs, and a fair
baseline risk assessment conducted by EPA. When you look at it, the
consent decree makes no sense given Monsanto's history and lack of
credibility with our community. Just one example is the idea that you
can cleanup Anniston without cleaning up the dumps. This would be
equivalent to drying dirty dishes--you still don't address the core
problem.
They say that the timing of the decree was a coincidence, not an
attempt to derail the State court. Yet, the record shows EPA cut
corners, ignored its own standards and had several last-minute, closed-
door meetings with Monsanto so that the decision could be filed before
the court finished its proceedings. The decree was signed by Monsanto
on March 19 and they filed a petition to dismiss the claims of 3,500
plaintiffs on March 22, 3 days before the decree was lodged. In fact,
Judge Laird had to subpoena the decree to make it public. Since the
agreement was filed, EPA has made many conflicting statements about the
timing, substance and even public review of their decision.
Since 1998, Community Against Pollution has been trying to build a
productive, trusting relationship with EPA. That relationship has been
broken. EPA could have come to the community when they started their
negotiations with Monsanto and asked for our input and kept us informed
about the progress. It has been done in many other towns and should
have been done in Anniston.
Although we can never make up for the pollution we have been
exposed to or the decades of corporate coverup, I am here today to ask
for your help in securing some justice for the people of Anniston. It
is critical that our community receives funding this year for
comprehensive health monitoring and a health clinic so we no longer are
left to wonder about the impact PCBs and other toxics are having on our
health and our children.
Let me close by again thanking Senator Mikulski and Senator Shelby
for holding this hearing today. We also hope that shining a bright
light on the many toxic chemicals that have permeated our bodies in
Anniston will convince Congress to do more to protect the public, our
children and the environment. We know these chemicals are in all of us
now, including the members of your subcommittee.
Speaking for the people of Anniston, I sincerely appreciate the
time you have taken and look forward to working with both of your
offices to insure that the needs of our community are take care of and
not just the bottom line of Monsanto. I would like my full testimony
and key documents be placed into the record.
Introduction
Senator Mikulski, Senator Shelby, thank you for this opportunity to
testify today. A public debate on the Federal Government's
responsibility to help my community has been a long time coming. The
people of Anniston, Alabama have waited more than 40 years for the
Federal Government to step in and help clean up the PCB contamination
in our backyards, our playgrounds, our rivers and creeks and our
bodies. Unfortunately, after 40 years of waiting, I am here today to
report that the Federal Government has failed the people of Anniston
and left the fox to guard the henhouse.
Instead of listening to the community and finally taking some
responsibility for the PCB contamination in Anniston, EPA has handed
over the future of our public health and environmental safety to a
corporate polluter who has repeatedly mislead Federal officials and
concealed critical information from the State, the town and from me and
my neighbors.
Unfortunately, the story of Anniston is not unique. There are
thousands of people in thousands of communities across the country that
face similar contamination, some whose environment and bodies are
burdened with chemicals we know, like PCB, and some who are being
exposed and contaminated by new chemicals whose health effects are
barely known.
As I testify today, communities like Anniston are reading newspaper
headlines that tell them EPA will only fund the clean up of 40
Superfund sites this year. For communities like mine that haven't even
made it on the National Priority List, but still face similar levels of
contamination, these headlines have a chilling effect. Will the
thousands of other communities also be told that corporate polluters,
like Monsanto, will be responsible for the clean up, the risk
assessments and the health of the community?
The Federal Government, whether it is the Environmental Protection
Agency, ATSDR or the CDC, should ultimately be responsible for ensuring
that communities like mine know what toxics they are being exposed to,
identifying the health risks from these toxics and preventing them from
seeping into our bodies, waterways and communities. Too much of this
responsibility is currently left to corporate polluters because of the
gaps in our environmental laws and budget shortfalls to enforce what is
in place. Anniston clearly shows that under this combination,
communities lose and well-connected corporations win.
Background
Poly chlorinated biphenyls (PCBs) production was banned by the U.S.
in 1977, and PCBs are among the dirty dozen' toxic chemicals named in
the Persistent Organic Pollutants treaty signed by President Bush last
summer. As early as 1979, EPA knew that Monsanto had dumped an
estimated 10 million tons of PCBs in an unlined landfill in Anniston.
Internal EPA documents show that they were worried about groundwater
contamination in the early 1970s. The Department of Justice even
recommended a lawsuit Monsanto around this same time. No one in our
community was notified of the contamination until the early 1990s.
Today, we are living with some of the highest levels of PCB in our
air, water and bodies. A fish from a local creek tested at more that
7500 times the EPA's safety level in 1969, yet we weren't warned about
eating fish from local waters until 1993. One of our residents, Ms.
Ruth Sims, has one of the highest levels of PCBs in her blood ever
recorded in a person who didn't work directly with PCBs. Even though
EPA initially wanted to dredge a local creek in 1971 because of PCB
contamination, no action was taken until 1999. Anniston has ongoing air
samples that is two to three times higher than the national norm for
PCBs. A panel of PCB experts testified this past January that Anniston
has the highest levels of PCBs in our blood and soils in the entire
world.
Although State and Federal officials failed to hold Monsanto
accountable. Twelve citizens of Alabama finally brought justice to
Anniston this year. These 12 jurists and the State court found Monsanto
liable for negligence, outrage, suppression of truth and other counts
for its contamination.
EPA and Monsanto say that the timing of the decree was a
coincidence, not an attempt to derail the State court. Yet, the record
shows EPA cut corners, ignored its own standards and had several last-
minute, closed-door meetings with Monsanto so that the decision could
be filed before the court finished its proceedings. The decree was
signed by Monsanto on March 19 and they filed a petition to dismiss the
claims of 3,500 plaintiffs on March 22, 3 days before the decree was
lodged. In fact, Judge Laird had to subpoena the decree to make it
public. Since the agreement was filed, EPA has made many conflicting
statements about the timing, substance and even public review of their
decision.
EPA Dramatically Weakens Partial Consent Decree
EPA started settlement discussions with Monsanto in January, 2001
with an outline of a consent decree that is dramatically different than
the one Monsanto's attorneys used to disrupt the court process a year
later. EPA initially proposed: (1) a more extensive Remedial
Investigation and Feasibility Study (RIFS) that covered ``all areas
with hazardous substances associated with Solutia's manufacturing
processes, including PCBs; (2) a Monsanto funded comprehensive
environmental health program with medical monitoring of Anniston
residents; (3) a risk assessment funded by Monsanto but performed by
EPA; (4) a $10 million education fund for special needs children in
Anniston; and (5) Monsanto funding to cover the response costs of EPA
and ATSDR. The consent decree brought into court is a far cry from this
original proposal and will only cost Monsanto $9 million, $6 million
for past EPA cleanup costs and $3.2 million for the special education
fund over 12 years. However, the Monsanto bailout leaves out critical
funding in years four and five because Monsanto argued that it needs to
put money into another court-order fund during those years. Just as EPA
is asking us to trust Monsanto with our health, they also are putting
Monsanto in charge of this education fund.
EPA documents show that EPA regional staff did not feel that this
final decision would pass muster with national standards. In a letter
to Monsanto's attorney in September, 2001, the EPA Associate General
Counsel for Region IV wrote that, ``the form of the consent decree is
such a significant deviation from the models that we may not be able to
get it approved in the current form.'' The consent decree was approved
after at least three meetings between Monsanto and EPA in February,
2002, and in time to significantly impact the court process in Alabama.
EPA Decision Gives Monsanto Back Door to Limited Liability
The day after the consent decree was announced by EPA and filed in
court by Monsanto, EPA regional officials even recognized that the
``timing of everything [involving the Monsanto consent decree] has been
strange.'' \2\ After 30 years of little action by EPA, 3 weeks after a
jury verdict of liability against Monsanto and several statements by
Judge Laird chastising Monsanto for not attempting to settle the case
in good faith, the watered-down consent decree comes to light during
testimony by Monsanto officials, throwing a monkey-wrench into the
court process.
---------------------------------------------------------------------------
\2\ Elizabeth Bluemink, ``Solutia Signs Agreement with EPA, Files
New Petition in PCB Trial,'' The Anniston Star, March 23, 2002
---------------------------------------------------------------------------
Documents made available in the trial show that while Monsanto was
delaying the court settlement it was accelerating the EPA process. On
January 22, 2002, Monsanto sent a proposed consent decree to EPA
declaring that ``the companies view reaching a resolution with EPA and
proceeding to conduct the RIFS as a top priority.'' \3\ During court
proceedings, a State regulator testified that EPA officials anticipated
that their agreement with Monsanto would preempt the State court
cleanup ruling. In fact, Monsanto itself is now bragging to its
shareholders that the court process will not lead to significant costs.
Even though Anniston has 10 times more PCB contamination than the
Hudson River, Monsanto has stated that their cleanup cost won't be any
higher than the normal range of $30 to $40 million, much less anywhere
near the $460 million EPA negotiated cleanup plan for the Hudson
River.\4\
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\3\ Letter from Alan J. Topol, attorney for Monsanto to DOJ and
EPA, January 22, 2002.
\4\ Elizabeth Bluemink, ``Legal Storm Brews Over PCB Issues,'' The
Anniston Star, April 4, 2002.
---------------------------------------------------------------------------
EPA Leaves Monsanto in Charge of Community's Health and Environment
Although EPA originally proposed a health study be conducted, the
consent decree includes no provisions for a health study and leaves
Monsanto in charge of conducting the risk assessment. After having been
lied to by Monsanto for 40 years, why should the people of Anniston
have to yet again put our health and the future of our community in the
hands of Monsanto? Monsanto still insists that PCBs aren't harmful and
yet we are being told to trust them to do the risk assessment? This
decision is a complete turnaround from the proposal EPA put on the
table a year ago and a significant departure from the model agreements
EPA is supposed to follow. Originally, EPA proposed to perform the risk
assessment itself and Monsanto would provide funding for, but not
conduct, a comprehensive community environmental health program with
medical monitoring. Now, Monsanto will conduct the risk assessment even
though Monsanto officials acknowledge that their work will have little
credibility in the community.
In addition, EPA dropped any requirement for Monsanto to pay for a
comprehensive health study to determine the effect of PCBs and other
toxics in our bodies. Throughout our trial in State court, Monsanto has
fought any medical monitoring in Anniston even though they had
previously conducted a testing program for plant workers in Anniston.
What do they not want us to find out? EPA and ATSDR both list PCBs as a
carcinogen and have named it to the ``dirty dozen'' list of toxic
chemicals. They support the science showing it is linked to health
problems in the liver, thyroid, immune system and childhood
development, and yet they have allowed Monsanto to continue to
stonewall any health studies in our community.
EPA's Consent Decree Should be Overhauled Completely to Address
Anniston's Needs
The old adage, ``hear no evil, see no evil, speak no evil'' has
obviously played out in this decision. Although EPA and Monsanto
negotiated this consent decree in private, behind closed doors, we now
have an opportunity to shine a bright light on its flaws and demand
that EPA completely re-examine their decision. For the many reasons I
have mentioned today, the current consent decree is wholly inadequate.
It has failed to meet the basic requests of the community. The record
levels of PCB contamination in our bodies, our water, our soils and our
air deserve a comprehensive, coordinated effort by EPA, ATSDR and the
CDC.
First, Community Against Pollution and thousands of Anniston
residents want to see our community put on the National Priority List
for Superfund cleanup. The cleanup needs to cover all of the
contaminated areas and not be limited to just PCBs. As Monsanto and EPA
documents show our community is being exposed to mercury, furons, and
dioxins as well. To date, no one has looked at the geologic features of
the ground underneath the dumps or where PCBs leaks are occurring.
Again, remember that 10 million tons of PCBs were dumped in these
dumps. Not addressing the landfill is like drying dirty dishes, it does
not get rid of the underlying problem.
Second, a comprehensive health survey with medical monitoring
should be conducted by a Federal agency or funding should be provided
to an independent entity to conduct it. Just recently the Center for
Disease Control announced that it will start a health monitoring
program in Calhoun County to identify all the environmental health
concerns in the county and public health measures needed for people at
risk. Obviously, we appreciate CDC's effort but do not believe that the
$140,000 available for the project is anywhere close to what is needed.
Right now, people are getting sick, know PCBs are all around them and
in their bodies and they don't know which way to turn or who to believe
about their health. We need a health clinic in the community that
people can turn to on a day to day basis. We also need a comprehensive
health and environmental monitoring programs that will routinely test
for the level of PCBs and other toxics in our blood, air, water and
soils. This data needs to be correlated with who is coming down with
health problems, where they live and what source of contamination is
leading to people's exposure. This has been done for other communities,
Superfund site or not. I hope that this subcommittee will fund such an
effort by the CDC or ATSDR this year.
Third, EPA or another independent agency must do the risk
assessment. Allowing Monsanto to do it is a significant departure from
EPA practice and the results would be questioned by the community.
There are six factors that EPA must consider before allowing the
polluter to conduct the risk assessment. One of those key factors is
the compliance record of the polluter. I am here to tell you that
Monsanto's compliance record could hardly rank high enough to merit
allowing them to do the risk assessment. Monsanto and Solutia will
argue that they are not the same company that spent 40 years
suppressing information from the community and State regulators, but
things have not changed. Just recently, ADEM fined Solutia $87,000 for
failure to report chemical discharges. Why should we trust them now to
do a fair risk assessment?
Finally, we want complete, open disclosure about the negotiations
that took place between EPA Headquarters, the EPA Region 4 office and
Monsanto to develop this consent decree. Under CERCLA, the Senate has
authority to require this information be made public and the people of
Anniston have a right know how this decision went so wrong over the
course of a year. We have a right to know who in the Administration met
with Monsanto officials. We have a right to see the paper trail of
meetings, offers and communications between Monsanto and the
Administration on this bailout.
Conclusion
To the people of Anniston, EPA's consent decree with Monsanto is a
blatant attempt to snatch defeat from the jaws of victory. For the
first time, we are winning in our battle with Monsanto to hold them
accountable for the thousands of pounds of PCBs they dumped in our
community and let seep into our bodies. Twelve jurists found Monsanto
liable for misleading us and jeopardizing our health and welfare. Judge
Laird is well on his way to working out a comprehensive cleanup plan
with Monsanto to bring justice, and just as important, help to the
people of Anniston. The State of Alabama is finally working with the
people of Anniston to ensure the contamination is cleaned up and our
health is protected.
Unfortunately, Monsanto has found a way to throw a monkey wrench
into the successful court process. It has persuaded EPA to back down
considerably from every one of its original proposals for Anniston.
Essentially, it has told us that yet again Monsanto will be responsible
for protecting our health and our environment. The people of Anniston
deserve better.
Again, I want to thank Senator Mikulski and Senator Shelby for
holding this hearing today. Speaking for the people of Anniston, I
sincerely appreciate the time you have taken and look forward to
working with both of your offices to insure that the needs of our
community are take care of and not the bottom line of Monsanto. We hope
you can help our community securing funding this year for health
monitoring. In addition, it is important that a bright light be shined
on the toxic chemicals that have permeated our bodies. I hope this
subcommittee will take these steps to help Anniston and the thousands
of communities and people facing similar issues around the country.
Senator Mikulski. Mr. Cobb, why do you not go right ahead
and proceed?
STATEMENT OF STEPHEN A. COBB, CHIEF, HAZARDOUS WASTE
BRANCH, ALABAMA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT
ACCOMPANIED BY JAMES WRIGHT, OFFICE OF THE GENERAL COUNSEL
Mr. Cobb. Thank you, Madam Chairman.
Madam Chairman, Senator Shelby, ladies and gentlemen, I
want to thank you for the opportunity to address the committee
this morning regarding the PCB contamination in Anniston,
Alabama. My remarks are intended to summarize the State's
involvement and the investigation, and the remediation of this
contamination, and to express our concerns concerning the
recently proposed consent decree between Pharmacia, Solutia,
EPA, and DOJ. I have also submitted more detailed written
information for the Committee's consideration.
The ADEM Hazardous Waste Branch has been addressing PCB
contamination in the Anniston area since 1993 in close
cooperation with EPA. In that time, we have required Solutia,
and the former Monsanto Company, to perform a number of interim
remedial measures designed to eliminate further migration of
contaminants into the environment.
In addition, we have required the facility to address
contamination in adjacent residential areas, to remediate
contaminated properties, to relocate certain residents, and to
conduct the comprehensive investigation to determine the extent
of contamination caused by the facility's historical
operations. These actions have been taken pursuant to the
State's corrective action program, which is federally
authorized under RCRA, to be implemented in lieu of the Federal
program.
ADEM and EPA mutually agreed in the early 1990s and
reaffirmed in 1996 that the State RCRA authority was best
suited to effect cleanup at the former Monsanto plant in
impacted off-site areas. Comprehensive investigations into
these areas in the Anniston community continue today pursuant
to requirements contained in a permit issued to Solutia in
accordance with the authorized State program.
Through its document reviews, technical assistance, and
Federal oversight, EPA has been directly involved in every step
of this process. In our efforts to effect timely and
appropriate remediation at the site, ADEM has routinely used
innovative regulatory methods since taking the lead role in
1993. Many of the innovations pioneered by ADEM on the Solutia
project are now advocated nationally by EPA headquarters as
RCRA corrective action reforms to speed up cleanup at all
sites.
Region 4 has routinely commended the ADEM corrective action
program for its work on this and other sites as part of the
annual RCRA program review process.
In July of 1999, ADEM requested EPA assistance in
addressing certain limited off-site residential areas under its
CERCLA authority. CERCLA involvement was requested to address
certain residential property access issues, and to determine
whether PCB sources other than the Solutia facility exists in
the area. We offered our support of CERCLA's efforts in
addressing these areas, and reaffirmed our intent to continue
addressing facility and other off-site areas under the State
permit. We have since worked side by side with EPA to address
the environmental issues facing the Anniston community.
EPA has stated that the purpose of the proposed consent
decree is to place the site under one overall umbrella,
administered by the Federal agency. Though there may be some
advantages to having the site under one umbrella, EPA's course
of action yields a number of undesirable and perhaps unintended
consequences. ADEM's primary concerns surround the scope of the
proposed consent decree, the impact it has on our federally
authorized program, its purpose, and the timing of its
submittal to the courts.
In a September 24, 1996 memorandum, EPA outlined its
national policy regarding coordination between the RCRA and
CERCLA programs. The policy states, and I quote, ``It has long
been EPA's policy to defer facilities that might be eligible
for inclusion on the NPL to the RCRA program, if they are
subject to RCRA corrective action,'' end quote.
EPA's current actions in this case appear to contradict its
own longstanding national policy.
Unlike the comprehensive State permit requirements that it
seeks to preempt, the proposed decree only addresses the
remedial investigation feasibility study. Although the proposed
decree expresses the intent to give credit for work already
performed, past experience with RCRA and CERCLA programs would
indicate that considerable effort will be wasted in recreating
existing information about the site.
Further, any needed short-or long-term remedial actions
identified during the course of this investigation would
require the negotiation of at least one, and likely multiple
additional agreements in the future. Given that the current
proposed decree has taken more than a year to negotiate, this
does not bode well for an expeditious cleanup in Anniston.
The timing and the purpose of the consent decree is also
questionable. The entry of a decree at this time and in the
manner proposed will place EPA in the position to be used as a
shield to protect a responsible party, in this case Solutia,
from the legitimate implementation of a federally authorized
State program, as well as from the lawful jurisdiction of a
State court addressing pollution liability and common law
public nuisance issues. Such a consequence is untenable.
Further, this action can be construed as an attempt to
usurp the implementation of the ADEM corrective action program
in a manner that bypasses the due process afforded by Federal
law and regulation.
Finally, ADEM is concerned that the nature and timing of
these actions sends an inappropriate message to the regulated
community, that CERCLA is a safe haven from State regulations
and civil proceedings, and the answer to one's legal problems.
In conclusion, Madam Chairman, ADEM stands ready to
continue working with EPA to address the environmental issues
surrounding the Anniston community. ADEM, EPA, the State health
agencies, the Federal health agencies, the courts, the
community, and many others must work together to resolve these
issues, but we must do so in a manner that maximizes the speed,
efficiency, and effectiveness of the cleanup efforts without
compromising the integrity and authority of our State programs
and our judicial system.
Thank you again for the opportunity to address the
committee this morning. I will be happy to answer any questions
that you may have.
Senator Mikulski. Thank you.
[The statement follows:]
Prepared Statement of Stephen A. Cobb
Madam Chairman, distinguished Committee members, ladies and
gentlemen, my name is Stephen Cobb and I represent the Alabama
Department of Environmental Management (ADEM). Also with me today is
Mr. James Wright of the ADEM Office of General Counsel. Thank you for
the opportunity to address the committee this morning regarding the PCB
contamination in Anniston, Alabama. My remarks are intended to
summarize the State's involvement in the investigation and remediation
of this contamination, and to express our concerns regarding the
recently proposed Consent Decree between Pharmacia, Solutia, EPA, and
DOJ. I have also submitted more detailed written information for the
Committee's consideration.
The ADEM Hazardous Waste Branch has been addressing PCB
contamination in the Anniston area since 1993, in close cooperation
with EPA. In that time, we have required Solutia and the former
Monsanto Company to perform a number of interim remedial measures
designed to eliminate further migration of contaminants into the
environment. In addition, we have required the facility to address
contamination in adjacent residential areas, to remediate contaminated
properties, to relocate certain residents, and to conduct a
comprehensive investigation to determine the extent of contamination
caused by the facility's historical operations. These actions have been
taken pursuant to the State's corrective action program, which is
federally authorized under RCRA to be implemented in lieu of the
Federal program. ADEM and EPA mutually agreed in the early 1990's, and
re-affirmed in 1996, that the State RCRA authority was best suited to
effect cleanup at the former Monsanto plant and impacted off-site
areas. Comprehensive investigations into these areas of the Anniston
community continue today pursuant to requirements contained in a permit
issued to Solutia in accordance with the authorized State hazardous
waste program. Through its document reviews, technical assistance, and
Federal oversight, EPA has been directly involved in every step of this
process. In our efforts to effect timely and appropriate remediation at
this site, ADEM has routinely utilized innovative regulatory methods
since taking the lead role in 1993. Many of the innovations pioneered
by ADEM on the Solutia project are now advocated nationally by EPA
headquarters as RCRA Corrective Action Reforms for all sites. Region 4
has routinely commended the ADEM corrective action program for its
outstanding work on this and other sites, as a part of the annual RCRA
program review process.
In July 1999, ADEM requested EPA assistance in addressing certain
limited off-site residential areas under its CERCLA authority. CERCLA
involvement was requested to address certain residential property
access issues, and to determine whether PCB sources other than the
Solutia facility existed in the area. We offered our support of EPA's
CERCLA efforts in addressing these areas, and re-affirmed our intent to
continue addressing the facility and other off-site areas under the
State permit. ADEM has since worked side-by-side with EPA to address
the environmental issues facing the Anniston community.
EPA has stated that the purpose of the proposed consent decree is
to place the site under one overall umbrella, administered by the
Federal agency. Though there may be some advantages to having the site
under one umbrella, EPA's course of action yields a number of
undesirable and, perhaps, unintended consequences. ADEM's primary
concerns surround the scope of the proposed consent decree, the impact
it has on our federally authorized corrective action program, its
purpose, and the timing of its submittal to the courts.
In a September 24, 1996 memorandum, EPA outlines its national
policy regarding coordination between the RCRA and CERCLA programs.
This policy states, and I quote, ``it has long been EPA's policy to
defer facilities that may be eligible for inclusion on the National
Priorities List (NPL) to the RCRA program if they are subject to RCRA
corrective action.'' (end quote). EPA's current actions in this case
appear to contradict its own longstanding national policy.
Unlike the comprehensive State permit requirements it seeks to pre-
empt, the proposed decree only addresses the RI/FS (Remedial
Investigation and Feasibility Study). Although the proposed decree
expresses the intent to give credit for work already performed, past
experience with the RCRA and CERCLA programs would indicate that
considerable effort will be wasted re-creating existing information
about the site. Further, any needed short- or long-term remedial
actions identified during the course of this investigation would
require the negotiation of at least one, and likely multiple,
additional agreements in the future. Given that the current proposed
decree has taken more than a year to negotiate, this does not bode well
for an expeditious PCB cleanup in the Anniston area.
The timing and purpose of this consent decree is questionable.
Entry of the decree at this time, and in the manner proposed, will
place EPA in position to be used as a shield to protect a responsible
party, in this case Solutia, from the legitimate implementation of a
federally authorized State program, as well as from the lawful
jurisdiction of a State court addressing pollution liability and common
law public nuisance issues. Such a consequence is untenable.
Further, this action could be construed as an attempt to usurp the
implementation of ADEM's corrective action program in a manner that
bypasses the due process afforded by Federal law and regulation.
Finally, ADEM is concerned that the nature and timing of these
actions sends an inappropriate message to the regulated community--that
``CERCLA is a safe haven from State regulations and civil proceedings,
and the answer to one's legal problems''.
In conclusion, Madam Chairman, ADEM stands ready to continue
working with EPA to address the environmental issues surrounding the
Anniston community. But we must do so in a manner that maximizes the
speed, efficiency and effectiveness of the cleanup efforts without
comprising the integrity and the authority of our State regulatory
programs or our judicial system. Thank you, again, for the opportunity
to address the Committee this morning. I will be glad to answer any
questions you may have.
Senator Mikulski. Senator Shelby, why do you not----
Senator Shelby. Thank you.
Senator Mikulski [continuing]. Start again?
COMPLETING REMEDIATION
Senator Shelby. Thank you, Madam Chairman.
Mr. Baker, you know a lot about this situation in Anniston.
What do you believe it is going to take to reassure the people
that live in Calhoun County, that have lived through this for
years and years, that are so fearful of the environment--what
is it going to take to reassure them that where they live,
where they eat, where they breathe is healthy again?
Mr. Baker. Well, Senator, I am glad you asked me that.
Number one, the trust is going to have to be put back on the
table.
Senator Shelby. That is what I mentioned earlier, is it
not?
Mr. Baker. Based upon that, what it would take in terms of
our community and Calhoun County, in terms of it getting back
on the right road, it is going to take the landfill that sits
on 202 to be addressed, and addressed properly.
Let me just say this, Senator: Monsanto had never been
fined any monies for all these catastrophes that they have
created in our community. The other week, they were fined
$87,000 for the first time for a release that they had done
just about a month ago, a month or 2 ago, and they had gotten
away with it for about 90 days, and we were surprised at that.
When the EPA came in, and they come in, and they did a
great job in terms of educating us, in terms of allowing us to
be able to be--for me to sit here at this table to talk about
the engineering part of this, and all this, and I have to give
them credit for all the interest, that our community right now
is more abreast than they were prior to this, because nobody in
our community knew anything about toxic waste, the dumps, and
all that nature, so that was the plus side of it.
But when they fined Monsanto the other day, they were again
showing that they really do not care. The reason they were
fined, because they had 15 days, I believe, was just to report
to ADEM about a leak that they had gotten into our water
supply, and it was 90 days later, I believe, or some months
later, that ADEM found out, and they fined them $87,000.
What aggravated the community the most was when the EPA
turned around and sent out a letter indicating to my community
that ``If you do not let us get access agreement''--which they
already knew that many of our people was under legal
obligation, and had lawyers--``If you do not, this--if you do
not send out--if you do not allow people to get onto your
property to get access agreement, then you will be fined
$27,000 a day, up to $27,000 a day, if you do not allow the EPA
or someone to get on your property.''
Why should we have been intimidated? This is why I am here
today. My folks have asked, why were we intimidated by using
that type of language, which I, in fact, told them that that
was the wrong move to make by sending that letter out, when
Monsanto, who is the culprit of all the problems, you have not
even fined them for the landfill that they knew for over the
last 20-some years, that they have contaminated Choccolocco
Creek, and all the way down to Martin Lake.
What we need, we need a health clinic. What we need, we
need a health study. What we need, we need a cleanup that is
going to be proper and done right, where people can go back to
living a normal life, where their property value can be
uplifted again. And we need to do this, and we need to do it
now.
If, in fact, if they had utilized the law that they are
trying to apply now 5 or 6 years ago, we would right now be in
probably one or 2 years of really going into a really decent
cleanup for Anniston, but because someone chose not to use that
law, but because someone prohibited them from using that law,
or because of this untimely decree order, look where we are
now. We are still talking about a study. We are still talking
about putting this under a microscope like we are little rats.
We are tired. We want to come out and live like we are human
beings.
ACTIONS BY THE STATE
Senator Shelby. Thank you for your statement. That was
good.
Mr. Cobb, I know you have not been with the Alabama
Department of Environmental Management during all this time
line that we are talking about, but it is obvious to me that
the Alabama Department of Environmental Management and its
predecessor was absent when they should have been involved. You
alluded to that a little bit. You were not explicit.
Senator Mikulski also raised the same basic question with
EPA: Where was EPA? Well, I think we know. As I said earlier, I
think we know where your agency has been in the past, and we
know where EPA has been in the past.
The question is, again: Where are you going to be in the
future, starting now? What are you going to do to--not monitor,
not to say, ``Well, we are going to do a little study,'' or
``We are going to do this,'' but a comprehensive study is going
to have to be done for the health, to reassure the people down
there. Do you disagree with that?
Mr. Cobb. No, Senator, I do not disagree that a
comprehensive study needs to be done. If I might answer----
Senator Shelby. Yes, sir.
Mr. Cobb. I think there were two parts of your question.
The comprehensive health study, our role there is working with
the health agencies, Federal and State, to provide them with
the information that they need to make decisions, because like
EPA, ADEM's role is not in the public health arena directly. We
work with the health agencies to do that.
RE-ESTABLISHING TRUST
To the first part of your question as to ``Where is ADEM
going to be in the future,'' and also ``Where has ADEM been in
the past''----
Senator Shelby. We know where they have been in the past,
basically. I think the record speaks for itself.
Mr. Cobb. I cannot speak to where ADEM----
Senator Shelby. Sure.
Mr. Cobb [continuing]. Was or was not prior to my tenure
there. However, as to where we will be in the future, I would
ask you to look at where we have been since 1993, when my
program began working on this project. We have aggressively
pursued remediation. Today, there have been in excess of $40
million worth of interim measures, while we are doing the
investigations.
Those are being borne at the company's expense, and we are
aggressively moving to be able to make final determinations in
the source areas while we are still studying the larger areas.
There is an awful lot of work yet to be done at this
facility. It will not be finished in a year or 2. I do not
think anybody can hope for that, but working with the
community, working with the courts, working with EPA, and
working, all of us, as hard as we can collectively, together,
and cooperating together, we can get there, and that is our
goal.
Senator Shelby. Is this your number one priority in
Alabama? This has to be one of the highest priorities; that is,
the contamination in the Anniston area. I am sure you have
other sites, but this has to be one of the highest.
Mr. Cobb. Yes, sir. I can say unequivocally that in the
hazardous waste program, that Calhoun County is our number one
priority in the State. And the Anniston PCB site, or the
Solutia facility, is at least tied for number one.
We have another very high-priority site also in Calhoun
County that you are probably aware of, that will take some
time, but we have separate staffs working on those, and we are
committed to devoting the resources to this that it needs. It
is very costly to do that, but we are working to do that.
Senator Shelby. What is your message today, not just to the
committee, but to the people who are going to be affected by
everything you do in the future about the cleanup, and the
health situation there? What is your message? You have a forum
here.
Mr. Cobb. My message today, Senator, would be that there
are some major trust issues that have occurred in the past----
Senator Shelby. Absolutely.
Mr. Cobb [continuing]. And we have to find a way to rebuild
that trust. We have to work together----
Senator Shelby. How do you do that?
Mr. Cobb. I believe we do that primarily by open dialogue.
David and I have had the opportunity----
Senator Shelby. Oh, by deeds. By deeds, not by words.
Mr. Cobb. Then by deeds, absolutely.
Senator Shelby. You have to get there, and you have to be
involved, and EPA has to be involved in a comprehensive health
study, and then a comprehensive cleanup, whatever it takes to
make the people whole, to make the community whole. Is this not
true?
Mr. Cobb. Yes, sir. I wholeheartedly agree, and I believe
that David will agree that throughout this process in the
1990s, we have had our fits and starts, but what we have
promised, what we have committed to, that we have done
everything that we could to deliver, and we have to continue to
do that.
Senator Shelby. Thank you, Madam Chairman.
SUPERFUND DESIGNATION
Senator Mikulski. Mr. Baker and Mr. Cobb, you both gave
really very powerful statements, in terms of the situation that
Anniston finds itself in now, and the Alabama Environmental
Agency. Both of you gave very powerful statements that you are
deeply troubled by this consent decree, and about essentially
the situation, and that even the elements in the consent
decree, from your perspective, leave many essential things
missing that you feel the community needs and, you feel, in
terms of the authority, to do that.
Let me step back for a minute, because I would like to
probe both of you on this. I have accurately summarized your
concerns, I think, but do you think Anniston should be on the
Superfund list?
Mr. Cobb. Is that----
Senator Mikulski. Both of you. I am sorry. Both of you.
Mr. Baker. Yes, Senator, and I am going to tell you why. If
we went to the Superfund and got on the Superfund list, it
would give us more opportunity for a lot of the things that we
did not get in this consent decree, and that is a fact. It
might even take longer, and it has taken as long as it has
taken already, so yes, I believe we should have been placed on
there.
We argued with our local, sometimes with the State, as well
as with the Federal Government in regard to this. We felt that
there was political power that kept us from getting on the
Superfund list. In fact, many of the people, the other night,
displayed that, while we were sitting in the meeting with the
EPA.
But moreover, in terms of this thing, we looked at how this
consent decree gives us--gives Monsanto all this power, when it
has no trust. They were found guilty of hiding--it is trust. So
why would you sit and negotiate, and come out and say, ``Well,
this is a great plan, but we are going to put this fox to guard
the hen house''? No. That is what insulted the intelligence of
our community.
We should have made the Superfund list, because we started
out to make sure that we got the best thing that we could for
our community. So I think that that is what we should have
gotten, was that. At least it should have been considered to
the highest level of this, because the negotiation with
Monsanto does not even work, and Solutia, because it has not
even worked when they have been found guilty. So what makes you
think this is going to work, when you sit down and sign this
consent decree?
They have violated the orders of ADEM on several occasions,
where they have not even completed some of the cleanup that
they should have been doing 5, 6, or 7 years ago, and they have
not gotten done as of to this date.
Senator Mikulski. Well, thank you, because essentially,
you, again, reiterated who has been left out.
Mr. Cobb, before I comment, sir, why do you not go ahead?
Mr. Cobb. Sure. Madam Chairman, I will respectfully
disagree with Mr. Baker. I do not think Superfund listing is
appropriate for this site at this time. In the early 1980s,
that might have been appropriate.
The reason I do not think Superfund listing would be
appropriate at this time, number one, is because the momentum
that we have been able to establish over the last several years
of leading the site forward, I am afraid that a listing would
slow it down, and we cannot afford to slow down on this site.
We need to be able to move forward.
There is also the fact that the case, after working for 6
years, is currently in the State court systems, and is actively
being pursued. I think allowing that process to continue to run
its course, while doing everything we can from a Federal and
State level to move the site forward, gets cleanup done in
Anniston faster, and also with all the stigmas that the
Anniston community has already endured, would avoid the stigma
of the NPL listing, which does have a significant impact.
So I believe that we need to focus every effort that we
have, but I do not believe that the Superfund listing is the
best approach.
Senator Mikulski. Well, we are not going to debate that. I
just asked your opinion, in the time that we have to move on.
Mr. Cobb, you come with a great deal of professional
expertise, and I understand you are also accompanied by legal
counsel. Is that from the Attorney General's Office of the
State of Alabama?
Mr. Cobb. Mr. James Wright, from the ADEM Office of the
General Counsel is with us. Mr. Wright is an associate attorney
general with the State, as a matter of that office.
Senator Mikulski. Well, we also want to note that he is
here, and we welcome him.
We note that there is this ongoing litigation, and we have
made it absolutely clear that no part of this testimony should
in any way jeopardize the proper flow of the Justice
proceedings, the court proceedings, and we have a member of the
Alabama Bar, and so on.
What, in your mind, do we need to insist--let us even say
this consent decree, as it is, goes on. Is it your belief that
even if it goes on--and I am not suggesting that it should, or
how it should turn out, or whatever. Is that then the bottom
line, or could other things be done, or insisted upon, say, by
this committee, by EPA, to provide the assistance to the
community that it needs through appropriate government
agencies?
I am not talking penalties, damages, or whatever, but this
community has been hurting for a long time. And as Mr. Baker
said, this is not an oil spill in the Gulf. This is a long-term
situation. And the impact of PCBs are chronic; so, therefore,
the purpose of this hearing is: What help can we get to the
community, and to those closest to the community, in this
place?
The ADEM--and I am going to come back to you in a minute,
but you see--so in your mind, and perhaps if you want your
advisor to join in this, but I would hope that this is not the
only thing that could be done.
Would you feel--and that is why we are so troubled by what
you said here. You phrased really some really significant
issues about how you think you, ``you'' meaning ADEM, could be
shackled in terms of being able to move forward to help this
community. Am I correct?
Mr. Cobb. Yes, ma'am. I think, clearly, with the motion
that Mr. Baker commented on, that the company filed in State
court almost immediately after the filing of the consent
decree, that certainly the company intends to pursue preemption
of the State court's and also preemption of the State
regulatory programs via CERCLA.
Through our cooperative agreements with EPA, I would hope
that we would be able to continue to provide assistance, but
certainly it will be in a different way.
As to the things that this Committee could do, I think
certainly this committee, maybe better than anyone else, has
the ability to influence some of the things like a health
study, or, based on testimony that I heard in the court
proceeding, maybe even health research in the area, to work
with this community to address the health issues, and also
through the State and local health departments.
Another thing which I understand that this committee also
has some control over is ensuring that adequate funding is
available to the State and to the Federal regulatory agencies,
to be able to apply the resources to this project, because we
have a lot of projects, and you have heard before that the
resources are tight. We want to be able to do the best job that
we can, and I think this committee can influence that.
Senator Mikulski. Well, let me go back. How long have you
been on this job, Mr. Cobb?
Mr. Cobb. I have been employed with ADEM since 1987. I have
been involved with the Monsanto facility, first as a project
engineer, beginning in 1988. As far as the PCB issues, I have
been involved in either a direct or a senior supervisory role
on this from the very beginning of it. So I have been involved
in this project for a long time.
ACTIONS BY THE STATE
Senator Mikulski. Let me just come to you, and then I am
going to do my wrap-up with Mr. Baker.
When I read the EPA testimony, and it said ``Over the
years, EPA has attempted to work closely with ADEM,'' and that
this has been going on, the 1970s, 1980s, I mean this chronicle
that we did, where was ADEM?
Mr. Cobb. Prior to 1993?
Senator Mikulski. Yes----
Mr. Cobb. Regarding----
Senator Mikulski [continuing]. And then really, in the last
5 years.
Mr. Cobb. All right. Regarding PCBs, I believe that there
was some involvement by our water programs prior to the 1990s.
Having not been involved in those programs, I am not sure I can
answer that explicitly.
As to the waste programs, prior to the late 1980s, ADEM did
not have the statutory or the regulatory authority to address
PCBs, because our HSWA corollary, the Hazardous Solid Waste
Amendments corollary to RCRA was not effective until
approximately 1998, and then we----
Senator Mikulski. So you did not get into it until--I mean
you were limited, because PCBs were exempted.
Mr. Cobb. Right. PCBs were not covered by the RCRA
regulations that we were implementing until at least the late
1980s.
Senator Mikulski. Well, did EPA not know that?
Mr. Cobb. Yes, ma'am.
Senator Mikulski. If EPA knew that, and that was not--
because according to this testimony, the language is explicit,
``Over the years, EPA has attempted,'' implying that you all
were not prime time, and also that they had this division of
labor, which they turned over to you.
Mr. Cobb. Yes, ma'am.
Senator Mikulski. Again, I am not being brusque with you. I
hope you understand.
Mr. Cobb. No, I know.
Senator Mikulski. I am enormously frustrated. There has
been a lot of finger pointing, and paper shuffling, and ``It
was his job, that job, this job,'' but they were without
someone standing sentry over this community.
Mr. Cobb. In the early 1980s, it is my understanding that
the EPA CERCLA program evaluated the Solutia facility on at
least one, and maybe on a couple of occasions.
In 1986, both the State and the Federal Government issued
operating permits for the facility. Because of the limited
scope of our State regulations, which did not encompass the
HSWA regulations they were currently regulating under--only the
EPA permit had the PCB landfills in it, and it did require
monitoring. We, as we were preparing for authorization for the
HSWA requirements, chose to take on that role in 1993, and to
apply the resources to move that forward.
Senator Mikulski. Well, I could pursue this, but let me
turn for my final part to Mr. Baker, and then I know that
Senator Shelby wants to have the final round.
Mr. Baker, as you noted in your testimony, you very
graciously commented that I come from a background of community
activism. You are exactly right, sir. I got into politics. I am
a professionally trained social worker, but it is in a field
called community organization and social strategy, organizing
people for self-help.
In our whole work in environmental agencies, it has always
been that the community should have the right to know, the
right to be heard, and the right to be protected, and not have
to--though they were going to do it on their own time, they
should not have to do it on their own dime.
Mr. Baker. Right. You are absolutely right.
CITIZEN VOLUNTEERISM
Senator Mikulski. So for all of these years, and your
citizen volunteerism, and your great hardship--and you
acknowledged the role of your beloved wife who played in this--
how have you been able to bring this forth? I mean this must
have been a great financial--first of all, a great personal
cost to you, in terms of time.
You are retired. You worked as a health aide, and yet you
put in another shift, being an advocate through the union. And
does the community, meaning the CAP, or any other community
group have a big bill? And if you are going against Monsanto's
lawyers, this lawyer, this regulatory hearing, this public
health--I mean you are not lawyers. You do not have masters in
public health. You bring other God-given gifts to the table.
How have you been able to do this?
Have you had the resources to do this? Are you holding big
legal fees, big bills, and so on? Because I am very much
interested in how citizens continue to be able to do this. We
used to do it on bake sales, and Fells Point Festivals, and,
you know, ``Bake Sale Barb'' up here. So tell me--
Senator Mikulski. Tell me--but it is no laughing matter. I
mean we, in fighting a highway, what we had to do just to raise
money for a legal defense fund, and then had to turn to
students at Johns Hopkins--which Mr. Meiburg, it was the
university he attended--to give us free help, to analyze the
stacks, and stacks, and stacks of reports. And then they told
us, ``You come in with your own plan.''
Now, how have you been able to do this, and are you holding
a big bill? I just want you to know, I am worried, not only
about your public health, but I am worried about your financial
health as well.
Mr. Baker. Well, let me just say, when we first started
out, we started out with what you just said, the cake sales,
the fried chicken sales on Saturdays and Sundays, and many of
us reaching into our own pockets. We opened an office in the
community. We first got an EJ grant, which was $20,000, which
was $16,000 of that EJ grant up front, and we were able to get
computers, and stuff of that nature. Subsequently, again, we
got a another small EJ grant, which was another $20,000.
Senator Mikulski. What is an EJ grant?
Mr. Baker. That is an Environmental Justice grant from the
EPA. We filed for it. It is for $25,000. Usually, you do not
get it but once. We got it twice.
Senator Mikulski. That is an important program for us to
keep in mind----
Mr. Baker. Yes.
Senator Mikulski [continuing]. In terms of citizen tools.
Mr. Baker. Let me just say that without those type of
grants, the community is still left out. It was a big help for
the community, because what it did, it opened the doors for us
to get things that we needed; it opened the doors to get the
educational factor of this problem out, in terms of working
with the EPA, and ADEM.
And as Steve pointed out, we had many meetings, traveling
back and forth, meeting with each other, arguing with each
other, debating with each other, whatever.
But then we had labor unions that pitched in and gave us a
hand, such as Mr. Lucy, and Jim Butler, president of our Local
420, in Anniston, a union up in New York City. Contributions
come in from the community. They come by, and they drop a
dollar in the bucket, and say, ``Look, this is what you can do
with this.''
Senator Mikulski. But it is a drop in the bucket.
Mr. Baker. Yes. It is a drop in the organization, and
believe me, it has been a fight and a struggle, but it has been
God's work. It has not just been the community. This was God's
choice to this community to wake up, and it woke up.
Let me just say that on one occasion we had over 10,000
people just show up at a meeting. On another occasion, we had
over 5,000 show up. Usually, and Steve can attest to this, we
always have had close to 500 to 1,000 people to show up at
meetings at any given time.
Senator Mikulski. Well, it sounds like my old days.
Tell me, sir, let me ask you again, Dr. Falk talked about
how you came to the table with your own health study.
Mr. Baker. Right.
HEALTH STUDY
Senator Mikulski. Where did that come from? Who did it, and
who paid for it?
Mr. Baker. Well, ATSDR did give us--I think, my wife and
Mr. Hall, the vice president, was in charge of that project.
They gave us $10,000 to do a health survey back in 1999. That
is how we came up with the conclusion of the problems that we
were having, even though we had already had many, you know, had
blood samples already done by people going to get their own
blood samples, and stuff of that nature.
Then subsequently, I believe that we embarked in testing
for lead. Shirley and James were in charge of that, working
with ATSDR, and getting kids tested. About 600 children were
tested, I believe. I think out of--oh, 475.
Senator Mikulski. How did you find out about ATSDR?
Mr. Baker. We found out through the EPA. I think it was
through the EPA that----
Senator Mikulski. They told you.
Mr. Baker [continuing]. Referred them to us--referred us to
them, and had them at some meetings that we were present at.
Senator Mikulski. Okay. Well, I am now going to turn to
Senator Shelby.
Before I do, I just want to say a couple of things. First
of all, I do want to acknowledge Mr. Lucy, who is a long-time
friend. When he came in, I was so eager to meet you that I was
a little distracted. He knew me when I was just a little
startup.
As well as the union members that--we want to acknowledge
this. But this has been very important, and, again, you can let
us know more after this, in terms of, ``What do citizens need
to do when they are the Davids, and all they have is this
slingshot, and they do not even know what rocks they have,''
and in terms of how we can empower citizens, at least to begin
on the right to know, so that they are heard, where they have a
right to be heard, that they have been able to do this. The
Environmental Justice grant, I am so glad you articulated this.
In terms of these public health issues, so that you can
turn to this, and we are interested in making sure their agency
has the information, first of all, the tools for them to be
able to go down into the community to communicate with you,
because whatever comes out of all of the legal battles, and so
on, that will be unfolding, we really want to make you,
Anniston, to really be sure--when we started on this
legislative area, we always said that the people had to be
protected, and in order to do that, they need to know what was
going on, they needed to be able to speak up and be taken
seriously, but they also needed to have the tools to be able to
get the self-help they needed to get the government help, and
private sector that they did.
So I want to just thank you, and I want to thank all those
people who cooked, and baked, and sang, and rallied, and so on,
and put in their own tremendous sweat equity.
I know that you put in three shifts. You put one in the
marketplace, earning a living; you put in another shift with
the family to make sure the living is worthwhile; and now you
put in a third shift, both as a union leader and as a community
activist. And I just want to say, God bless you.
Mr. Baker. Thank you.
Senator Mikulski. Mr. Cobb, thank you, and all the public
servants. I mean you can see that a competent civil service is
important.
But, Senator Shelby, why do I not turn it over to you now?
Senator Shelby. I will sum it up, Madam Chairman. I want to
thank you again, as the chairman of this committee, and for
allowing me as a member, to request a hearing, and that you
granted it. I think this has been a good hearing. It is only
beginning. We have a long way to go.
Mr. Cobb, you know this. The administrator, regional
administrator from the EPA basically said this, but we shall
not stop. We should not stop until we make the people whole
there, and it is going to take a lot of work, and it is going
to take a lot of pressure. Thank you.
Thank you, Senator Mikulski.
CONCLUSION OF HEARING
Senator Mikulski. Okay. This subcommittee stands in recess.
[Whereupon, at 12:15 p.m., Friday, April 19, the hearing
was concluded, and the subcommittee was recessed, to reconvene
subject to the call of the Chair.]
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