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81–528 PDF 2003

S. HRG. 107–637

PCB CONTAMINATION IN ANNISTON,

ALABAMA

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
(II)

COMMITTEE ON APPROPRIATIONS

ROBERT C. BYRD, West Virginia, Chairman

DANIEL K. INOUYE, Hawaii

ERNEST F. HOLLINGS, South Carolina

PATRICK J. LEAHY, Vermont

TOM HARKIN, Iowa

BARBARA A. MIKULSKI, Maryland

HARRY REID, Nevada

HERB KOHL, Wisconsin

PATTY MURRAY, Washington

BYRON L. DORGAN, North Dakota

DIANNE FEINSTEIN, California

RICHARD J. DURBIN, Illinois

TIM JOHNSON, South Dakota

MARY L. LANDRIEU, Louisiana

JACK REED, Rhode Island

TED STEVENS, Alaska

THAD COCHRAN, Mississippi

ARLEN SPECTER, Pennsylvania

PETE V. DOMENICI, New Mexico

CHRISTOPHER S. BOND, Missouri

MITCH MCCONNELL, Kentucky

CONRAD BURNS, Montana

RICHARD C. SHELBY, Alabama

JUDD GREGG, New Hampshire

ROBERT F. BENNETT, Utah

BEN NIGHTHORSE CAMPBELL, Colorado

LARRY CRAIG, Idaho

KAY BAILEY HUTCHISON, Texas

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

SUBCOMMITTEE ON VA, HUD, AND INDEPENDENT AGENCIES

BARBARA A. MIKULSKI, Maryland, Chairman

PATRICK J. LEAHY, Vermont

TOM HARKIN, Iowa

ROBERT C. BYRD, West Virginia

HERB KOHL, Wisconsin

TIM JOHNSON, South Dakota

ERNEST F. HOLLINGS, South Carolina

CHRISTOPHER S. BOND, Missouri

CONRAD BURNS, Montana

RICHARD C. SHELBY, Alabama

LARRY CRAIG, Idaho

PETE V. DOMENICI, New Mexico

MIKE DEWINE, Ohio

TED STEVENS, Alaska (ex officio)

Professional Staff

PAUL CARLINER

GABRIEL A. BATKIN

ALEXA SEWELL

JON KAMARCK (Minority)

CHEH KIM (Minority)
(III)

CONTENTS

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

(1)

PCB CONTAMINATION IN ANNISTON,

ALABAMA

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 Govern-
2

ment 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
3

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 trou-
4

bling, 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
5

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 Environ-
6

mental 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
7

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.
8

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
9

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, costeffective manner, that is based on sound science.

This concludes my prepared statement. I would be pleased to answer any questions that you may have.
10

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
11

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.
12

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.
13

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.
14

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
15

provide information and support to local pediatricians. While in Anniston, it became

clear that there was concern among community members for the health and wellbeing 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.
16

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.
17

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.
18

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——
19

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
20

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
21

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.
22

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?
23

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?
24

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
25

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
26

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——
27

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.
28

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, oneto-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——
29

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
30

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.
31

ANNISTON PCB SITE CHRONOLOGY—Continued

Dates Actions taken

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 addresslongterm 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.
32

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,
33

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.
34

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.
35

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.
36

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.
37

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
38

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?

$31⁄2 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.
39

1 References to Monsanto include Monsanto, its corporate spin-off Solutia and its parent company Pharmacia.

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.
40

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
41

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.
42

2 Elizabeth Bluemink, ‘‘Solutia Signs Agreement with EPA, Files New Petition in PCB Trial,’’

The Anniston Star, March 23, 2002 3Letter 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.

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.

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

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 con-
43

ducting 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
44

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
45

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.
46

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
47

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 offsite 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?
48

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.
49

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
50

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
51

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.
52

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.
53

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
54

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
55

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.
56

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
57

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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