1. October 2014
Court won’t rule out cleanup of PCBs in bay
by WILLIAM RABB
Note: PensacolaToday.com is the Studer Institute’s online daily newspaper. This story was
Rabb’s idea. After more than six years of court filings, he knew that the case could hold
valuable new studies about PCBs in the bay. He spent weeks going through 37 volumes of
court files, reading studies and talking with experts.
Some 45 years after Monsanto Co. allowed some of the
world's most dangerous and persistent chemicals to flow into
Escambia Bay, a Pensacola judge has ruled that a massive
cleanup of the bay and river is not off the table.
The recent ruling by Escambia County Circuit Judge
Jan Shackelford is the latest development in a lawsuit that
began in 2008. If the plaintiffs prevail, a cleanup could
ultimately result in a remediation process that could cost more
than $400 million – perhaps something like the years-long
effort now under way on the Hudson River in New York State,
where General Electric Co. dumped the same types of PCB
compounds decades ago.
The lawsuit was filed by 160 homeowners and
businesses around Escambia Bay, who contend that Monsanto
and its successor companies damaged their use of the bay and
contaminated seafood with the PCBs, or polychlorinated
biphenyls, which have been classed as probable human
carcinogens. The lawsuit, now in its 37th volume of filings, has
produced a raft of new studies and expert analyses that paint a
grim picture of how the companies and regulators may have
failed to properly deal with PCB leaks and runoff over the past
half-century.
Plaintiffs' experts contend:
The hazardous compounds are still seeping from the plant
site in Gonzalez.
The plant allowed PCBs to drain into nearby waterways,
constituting an unpermitted discharge, in violation of state law.
Recent soil and sediment samplings show high levels of the
compounds on the plant site, in the river and the bay.
Monsanto hid information from regulators and failed to
take measures that would have prevented widespread contami-
nation.
The PCBs threaten dolphins and cormorants because levels
in some hot spots are 780 times higher than federal protection
limits.
PCBs in bay oysters declined from 1989 to 1994, but have
remained steady since then – suggesting contaminants are still
entering the bay.
State and federal authorities have done little to address the
contamination, despite guidelines that call for concern.
The defendant companies have denied any wrongdo-
ing, and said they have worked closely with regulators to
prevent discharges of the chemicals to the river and bay.
“The property owners who brought this lawsuit do not
have PCBs from the plant on their properties, in their homes, or
in the sediments adjacent to their properties,”reads a statement
from Pensacola attorney Steve Bolton, who represents the
defendant companies.“They, as can the entire Escambia Bay,
Pensacola, and Milton communities, safely enjoy the wide range
of benefits the bay provides.”
The companies declined to talk about the specifics of
the litigation, but said a cleanup of the bay would be“unneces-
sary, given the absence of any health risk posed by the ultra-low
concentrations in the Bay,”Bolton said.
Defendants Monsanto, its successor companies Solutia
Inc. and Pharmacia Inc. and the new plant owner, Ascend
Performance Materials, early on offered a $1,000 settlement for
each plaintiff, which most of them rejected. The case, known as
John Allen et al vs. Monsanto et al, may go to trial early
next year. Both sides have asked for a jury.
Since initial news reports when the suit was filed,
though, the health threats highlighted by the case have been all
but forgotten by the public and by state health authorities.
Bayside residents and scientists say that state and local agencies
have done little to warn seafood lovers or to address the toxic
sites. Some locals have taken it upon themselves to spread the
word.
“Don't eat the mullet, and don't eat the crab unless you
take the fatty tissue out first,”plaintiff Sherry Starling, a former
state environmental inspector, said recently at a public gather-
ing of concerned citizens.
The long arm of PCBs
Polychlorinated biphenyls, produced by combining
chlorine and benzene, were once hailed as miracle compounds
by industry because they can withstand extreme heat while
retaining their lubricating and insulating properties in electrical
and other equipment. Although most are oily
compounds, they are heavier than water and sink into
sediment. By the 1970s, PCBs had been shown to cause cancer
and other health problems, kill marine life and damage bird
eggs the world over. They were mostly banned by Congress in
1977, but some PCBs break down so slowly that they could be
toxic in sediment for hundreds, perhaps thousands of years,
studies show.
Monsanto, a global company that started more than
100 years ago and was the sole U.S. manufacturer of PCBs, has
acknowledged that PCBs were used at its nylon plant on the
Escambia River, eight miles north of Pensacola, and that they
3. October 2014
189 ppb as a“probable effects level”for biological damage. But
Carl Mohrherr, a retired UWF biologist, and others said those
state thresholds are misleadingly high: They only refer to
immediate effects on organisms, and do not reflect how the
poison can bioaccumulate to more dangerous levels.
Some plaintiffs' experts suggested there's no safe level
for the hardy compounds, and that Monsanto should have
taken more precautions.
“Monsanto documents show that the company had both the
knowledge and technology available to prevent PCBs from
being discharged into Eagle's Nest Creek and the Escambia
River,”another plaintiffs' witness, professor Jack Matson of
Pennsylvania State University, reported.
Most expert witnesses in lawsuits are paid for the time
they spend on the case. But a number of independent studies
going back to 1969 also have documented the existence of
PCBs and a host of other contaminants, including the banned
pesticide DDT, in the bay and river. A 2009 report by UWF
scientists Mohrherr, Johan Liebens and Ranga Rao may have
been the first to suggest remediation as an answer:“...the only
safe cleanup level for PCBs relative to human consumption of
seafood will be sediment concentrations that are below current
analytical detection limits,”reads the study. But Mohrherr
cautioned that a cleanup of bay hot spots would do little good
if PCBs are still coming from the river or plant site.
Any cleanup would be expensive and could take many
forms, experts have said, including dredging parts of the bay
and river below the plant site, or capping contaminated spots
with clay. Other ideas include utilizing bacteria that break down
the PCBs to less-toxic molecules, a process now under investiga-
tion at a number of laboratories, according to published studies.
Any course of action could be a huge undertaking. On the
Hudson River, named an EPA Superfund site in 1984, crews are
dredging 40 miles of river bottom, and plan to replace it with
clean soil in a project expected to last another four years and
cost more than $500 million. GE has agreed to pay at least part
of the cost.
Monsanto, like GE, may be able to afford an expensive
cleanup plan. The company sold the Pensacola nylon plant in
2009, but could still be held liable. Now an agricultural giant,
Monsanto reported almost $2.5 billion in annual profits for
2013, the company's annual report shows. The company may
have few friends to come to its defense these days: As a leading
producer of genetically modified corn, soybean and other
crops, Monsanto has earned the ire of a growing number of
environmental groups.
Monsanto has a history of disregarding environmental
problems resulting from their products, said plaintiffs' lawyer
Don Stewart of Anniston, Ala.“They've been a pretty thuggish
company,”he said. Stewart is well familiar with Monsanto's
tactics: He was the lead lawyer who in 2002 won a $700
million judgment against Monsanto for extensive PCB pollution
around its manufacturing plant in Anniston. (After a brief initial
conversation, Stewart did not return emails and phone calls for
this article.)
Health Department falling short?
The man who may have done more than anyone to
prompt concerns about the PCBs in Escambia waters is Dick
Snyder, director of the University of West Florida's Center for
Environmental Diagnostics and Bioremediation. He and
colleagues Rao and Natalie Karouna-Renier conducted studies
in 2007 and 2008 that showed PCBs in the tissue of a wide
variety of fish, oysters and crab. Concentrations were particu-
larly high in striped mullet, bottom feeders that are a staple of
many Pensacola-area consumers' diet. The chemicals appear to
concentrate in the skin and fatty tissues of the seafood.
When PCBs in fish reach a certain level, the EPA
considers that a screening threshold at which consumers
should be warned. That means consumers eating the fish more
than once a week stand a one in 10,000 chance of getting
cancer over many years. Some of the mullet in Snyder's studies
had levels 300 times the EPA threshold, giving consumers a
significantly elevated risk if they eat the contaminated mullet
on a regular basis.
“Consumption of some finfish harvested from the
Escambia River and Escambia Bay pose a significant risk of
cancer and non-cancer health hazards due to contamination
from PCBs...”wrote plaintiffs' expert Harlee Strauss, a molecular
biologist and environmental risk assessment consultant.
But Snyder, whose studies are repeatedly quoted in the lawsuit,
believes that dredging the bay could do more harm than good.
“Disturbing the sediments may well create more
exposure than it would solve,”Snyder told PensacolaToday.com.
“I think the best outcome was what we did, which was to alert
the public to the problem. But, unfortunately, the Florida
Department of Health has not continued to monitor the
problem and provide updated information.”
The state Health Department posts a fish consumption advisory
on its website, warning people not to eat more than one meal a
week of skinless striped mullet that was caught in the lower
Escambia River or Escambia Bay. But plaintiffs in the lawsuit and
others have suggested that advisory is inadequate: mullet
range far and wide, and could easily feed on PCBs in upper
Escambia Bay, only to be caught in Pensacola Bay, in the sound
or in the Gulf.
“I don't think that advisory does a whole heck of a lot
of good,”said Chips Kirschenfeld, senior scientist and division
manager for Escambia County's Water Quality and Land
Management Division.“You go to a restaurant, you don't know
where the fish comes from.”
A few years ago, health officials appeared to be more
concerned. In late 2007, after the UWF studies and news reports
about it were published, the Escambia County Health Depart-
ment posted advisory signs at boat launches and secured
billboard advertising that explained the risks. But in recent
years, those signs have disappeared, and the health department
has made no effort to post them again, health officials said.
“A sign like that wouldn't last too long around here,
anyway,”said Rick Sconiers, who runs Jim's Fish Camp, a boat
4. October 2014
launch and shop near the eastern edge of the U.S. 90 bridge on
Escambia Bay.“A fisherman would probably take that down.”
Local seafood shops said they have continued to sell
mullet, crab and other bay species caught by local fishermen,
with little awareness of the dangers. Although experts say that
blue crab should be cleaned of its tomalley, or fatty tissues and
organs, before it's boiled,“most people just boil them whole,”
said Phil Rollo, owner of Rollo's Seafood in Milton, who regularly
buys bay crab from local crabbers.
“Well, you have given me a lot to think about,”said
Alesia Wilkes, a manager at Joe Patti's Seafood in Pensacola,
when asked about potential PCBs in local seafood.“We do not
post anything in store currently to the effects of this, but we
would never deny the truth to a customer.”Much of the seafood
sold at Joe Patti's comes from outside Escambia Bay, including
Mobile Bay and Apalachicola, she said.
While some mullet lovers discard the skin these days,
local fishermen and seafood sellers all say the same thing: The
old-timers like the taste of skin-on mullet.
“My dad never took the skin off,”said Daniel Mabire,
who has spent his life on the waters of Escambia Bay.
A 2004 survey by UWF, in fact, showed that 40 percent
of those Escambia and Santa Rosa residents who eat fish enjoy it
with the skin on.
The Santa Rosa County Health Department is in the
process of developing paper flyers explaining the fish advisory,
to be left at places where fishing licenses are sold, said Deborah
Stilphen, public information officer at the department.“It was
determined that posting signs would be impractical because of
the amount of information that would have to be included,”she
said.
Santa Rosa and Escambia Health Departments said they
have no plans for posting signs or flyers at restaurants or seafood
markets, and no plans to include crab in future advisories,
despite the worrisome data. “We're constantly
pushing people to go to the web site, and we have brochures in
the office,”said Marie Mott, public information officer for the
Escambia Department of Health.
Where are state authorities?
Legally speaking, ordering even a limited cleanup of the
bay or river could be problematic. Monsanto and co-defendants
in the lawsuit have argued that under the legal doctrine known
as primary jurisdiction, only the state Department of Environ-
mental Protection can order such remediation. Plaintiffs' lawyers
and legal scholars, though, said that a court can step in if the
state agency shows no signs of taking action. Stewart said that
plaintiffs and others through the years had, in fact, tried unsuc-
cessfully to get the DEP to order the waterways cleaned.
And that raises a key question for a number of local
environmental activists: If Escambia River and Bay are known to
have been contaminated since the early 1970s, and recent
studies suggest the contamination is continuing, why hasn't the
EPA or DEP shown more interest? Court documents in the case
show that EPA officials in 2002 were aware of PCBs continuing to
leak into the river, but did not force action. Part of that may have
been the result of a decades-long shift in environmental protec-
tion nationwide. Thanks to budget cuts and other political
concerns, the federal agency now often leaves it to the states to
take the lead, news reports show.
Dawn Harris-Young with the U.S. Environmental
Protection Agency in Atlanta said that when sediment and
fish-tissue levels reach a certain threshold, it's now considered
the state's responsibility to take action, perhaps going so far as
ordering a fishing ban in the bay.
Florida environmental experts say that's less than likely
to happen.
“The state talks a good show, but they don't really do
anything,”said Rich Wiecowicz, a retired wastewater engineer at
DEP who studied industrial discharge issues for years.
“The DEP has a history of being reluctant to hammer
down on industries that provide jobs,”Kirschenfeld said.
DEP officials declined to comment for this article, except
to say the agency has no plans to take any legal action.
DEP's own published guidelines suggest that when PCB
concentrations in sediment rise above probable effects levels,
the agency should make it a“high priority”to investigate further
and determine what remedial measures are needed. State law
also appears to allow the agency to prosecute polluting offend-
ers. Monsanto, in fact, relies on regulators' inaction as a defense:
“The lack of a formal regulatory response by DEP and EPA, with
respect to PCBs in Escambia Bay, indicates that this is a region
where risks of chemical contaminants are low and/or adequately
managed,”wrote Charles Menzie, a scientific witness for the
defendants.
The lack of action from the state agencies sounds
strikingly similar to what happened in Anniston, Ala., where
Monsanto manufactured PCBs for decades. The company failed
to fully inform regulators of its poisonous discharges, and state
environmental officials failed to act, even when they were made
aware, according to the 2014 book“Baptized in PCBs,”which
documented the Anniston case and mentions the Escambia Bay
contamination.
It's also possible that local authorities, such as the state
prosecutor or county attorney, could bring legal action, some
have suggested. Escambia County Attorney Allison Rogers said
such an idea“is definitely a possibility; I just don't know much
5. October 2014
about this situation.”
Escambia County may have already taken a step in that
direction. In 2008, the county received a $200,000 grant from the
Legislature to sample upper bay sediment for a possible remedia-
tion project. More than 500 samples showed 25 sites with PCB
concentrations at or above the state's probable effects level. Most
of those were clustered near the mouth of the Escambia River,
suggesting that dredging just that area of the bay would remove
significant amounts of the chemicals, said Kirschenfeld, who lead
the project. But after the recession hit, the Legislature declined to
fund any remediation work.
“I plan to submit a request again this year,”he said.
In the Pensacola lawsuit, other scientific experts have
produced several reports that have raised a number of red flags.
The reports show that PCBs in high concentrations have been
found on the plant site as recently as 2010 and 2012.
Soil samplings from 1999 on the plant site showed levels
as high as 24,300 parts per billion, or almost 10 times the state's
cleanup target levels, the level of cleanliness the state would like
to see after a spill has been ordered remediated. In 2011, another
soil sample taken near plant holding ponds found PCBs at levels
80 times the cleanup target level.
The next year, samplings from the creek bed adjacent to
former holding ponds at the site, show Aroclor 1254, Monsanto's
most-often used PCB product, at levels ranging from 12 to 350
parts per billion. These sources and others have likely continued
to release PCBs into the Escambia River, said plaintiffs expert
Matson, a professor emeritus in environmental engineering at
Pennsylvania State University.
“Monsanto documents show that the company had both
the knowledge and the technology available to prevent PCBs
from being discharged into Eagle's Nest Creek and the Escambia
River,”reads Matson's report. At another Monsanto plant, for
example, the company built what's known as a“concrete bathtub”
to collect all drainage, and used absorbent material to remove
contaminants from wastewater, said Matson, who was also a key
witness in the Anniston case against Monsanto.
The company's neglect dates back decades, the plaintiffs
argue. In 1971, state environmental authorities, in one of their few
actions about this source of pollution, cited Monsanto for violat-
ing regulations by allowing PCBs to drain from the plant site. But
the company only addressed one source of the drainage, and the
state did not follow up, Matson said in his March 2014 deposition.
“Here you had an NOV (notice of violation) that if
enforced, would indeed have solved the problem, but it was only
partially dealt with,”Matson said.“My thinking was that the
relationship between the regulatory authorities – the state
regulatory authorities and Monsanto – really hadn't changed.
They hadn't – because they had put the lid on and suppressed the
information about the plant that they were still ignorant on what
was going on in the plant.”
A $65,000 containment area would have prevented a
legacy of contamination, Matson said:
“They could have zippered up this plant so that what has
happened wouldn't have happened.”
Although the plant manager said in 1969 that the
company had stopped using PCBs, evidence shows that high
amounts of the compounds were found in sludge in the air
compressor tanks in 1995, company workers said in deposi-
tions.“Well, the reality is they didn't stop using PCBs and – and
the feed pond got horribly contaminated with PCBs, which
created a problem in the late '90s as to what to do about it,”
Matson said.
Monsanto repaired the leaking feed pond, but not
before it may have contaminated another area, which
ultimately led to runoff into the river, plaintiffs experts suggest.
The mid and late 1990s is when PCB levels in oysters stopped
declining, suggesting that was when additional amounts of
PCBs began draining off the plant site, said plaintiffs' expert
Edward Garvey, a geochemist who also studied the Hudson
River.
Another plaintiffs' expert raised concerns about
continuing pollution after recent soil samplings showed PCBs at
five spots.“It is evident that PCBs are migrating to the Escambia
River and concentrating within the depositional environments
of the river,”wrote Ronald Scrudato, director of technology at
Global Green Environmental, which specializes in removal of
toxic materials from soil and wastewater.“The elevated soil
samples collected and analyzed in September 2012 demon-
strated that Ascend properties are contributing to the PCB
migration to the Escambia River and Bay systems.”
“It is likely that the PCBs originating near (the plant
site) are the primary source of contamination to fish in the
Escambia River and upper Escambia Bay, as documented by
Snyder and Roa,”wrote Garvey.
Not from us, Monsanto says
The defense team has faulted these experts, saying the
PCBs found in some samplings were different from the types of
PCBs used by Monsanto, and that some of the higher concen-
trations were found further downstream, near Plant Crist. Gulf
Power officials were surprised to hear that claim.
“We don't know of any kind of PCB discharge at Plant
Crist,”said spokesman Jeff Rogers. The utility made an effort in
the 1990s to remove any traces of PCBs in equipment at the
plant, and crews regularly test for hazardous chemicals, he said.
Defense consultant Wayne Grip pointed out that in 1999, Gulf
Power did obtain a permit to burn waste oil which may have
contained PCBs, but Rogers said company engineers have
shown that the amount of the compounds in the oil were so
small, and were incinerated so completely, that they could not
have contaminated any sediment.
The defense also has offered what a casual observer
might call hair-splitting: One section of state law allows
damages to be awarded because of a pollution discharge, but
only only if the contaminants came from a“terminal facility,”
such as the barge dock on the northeast corner of the
Monsanto plant site. Monsanto released PCBs only from an
6. October 2014
outfall ditch a few hundred yards to the south, so therefore did
not violate the law, according to a defense motion.
The Monsanto lawyers also offered another interest-
ing defense: The company couldn't have violated any state
sediment pollution standards because Florida has none for
PCBs. The DEP didn't establish numerical water quality
standards until 1990, and it still has no real sediment standards.
The agency has published only Sediment Quality Assessment
Guidelines, which encourage investigations of contamination
when it rises above a certain level, but do not require any
action.
A decade ago, Don Stewart became one of the
best-known trial lawyers in the country after his team won a
$700 million judgment against Monsanto Co. for decades of
PCB pollution in Anniston, Ala. Stewart, a former U.S. senator
from Anniston, was credited for his exhaustive examination of
company records to show that Monsanto knew the dangers
for decades, but did little to correct them or warn the public.
The case took more than six years and involved more
than 3,500 plaintiffs and dozens of expert witnesses. The jury
took just a few hours to unanimously award the verdict.
In the Pensacola PCB case against Monsanto and
others, though, Stewart and his co-counsel's actions have
raised eyebrows in the local legal community, particularly
after the lawyers asked an Escambia County Circuit judge to
remove herself from the case – six years into it. In other ways,
Stewart has failed to communicate on key points, frustrating
his own associates and others alike.
“That's why I withdrew from the case, because he
never would call me back,”said Pensacola attorney Sam
Bearman.“I like the guy, but you have to be able to communi-
cate.”
Until Stewart agreed to handle the case, plaintiffs said
they had trouble finding a local lawyer to take it, probably
because of the expense involved in hiring experts and the
years-long commitment the case would take. Stewart, who is
not a member of the Florida Bar, associated Bearman as the
local lawyer when the case was filed in 2008. Bearman is a
well-regarded litigator, and was one of the lead attorneys in
the recent ConocoPhillips (Agrico Chemical Co.) cases that
settled for more than $70 million and paid more than 3,000
Pensacola homeowners several thousand dollars each
because of groundwater contamination.
The local PCB case, John Allen et al vs. Monsanto et al,
is similar to the Anniston case, and charges that Monsanto
and its successors polluted Escambia Bay and River, and are
continuing to allow the cancer-causing chemicals to drain off
the plant site north of Pensacola. The plaintiffs are asking for
monetary damages, but also for a cleanup of the river and
bay, a process that could cost hundreds of millions of dollars.
“I thought it was a
very meritorious case,”said
Bearman.
After Bearman left
the case, Stewart associated
Pensacola lawyer Steven J.
Baker. This summer, Baker
and Stewart took a step that
is extremely rare and is
considered highly risky for
any lawyer: They asked the
judge in the case to step
down – in the middle of the
case. The grounds: Circuit
Judge Jan Shackelford
appeared to repeatedly favor
the defense attorneys in
court hearings and was
rude, demeaning and
disparaging to plaintiffs' lawyers, in and out of court. As an
example, Baker related a recent incident when he and his wife
stopped to speak to Shackelford at a local restaurant. The
judge apparently was not friendly. Outside, Baker's wife asked
why the judge appeared to dislike Baker so much, the motion
reads.
“The continued and repetitive incidents taken
together lead to the inescapable conclusion that the court is
biased and prejudiced, creating a well-founded fear that
plaintiffs cannot receive a fair trial on the merits,”reads
Stewart's and Baker's July motion to recuse.
Shackelford denied the motion, saying it failed to
contain allegations that would give the appearance of an
unfair trial. Since then, the judge has shown fewer signs of
rudeness or bias, according to the court record. In fact, she
soon after ruled against the Monsanto defense lawyers on two
key points: Remediation, or a possible cleanup of the bay,
would not be removed from consideration; and the testimony
of one of the plaintiffs' chief expert witnesses would be
allowed.
The lawsuit also provides a rare glimpse into
Monsanto's corporate mindset in the late 1960s. Shortly after
controversy over PCBs spread worldwide, but before contami-
nation in Escambia Bay was widely known, Monsanto estab-
lished a“PCB Committee”to discuss its options, according to an
August 1969 hand-written company memo that was included
in the court files.
In Pensacola, the memo notes that state officials had
visited the nylon plant, but asked“no real searching
questions...Lid probably on for the moment.”
Stewart
(courtesy Stewart & Stewart law firm)
Famous lawyer frustrates friend and foe alike
by WILLIAM RABB
