What Monsanto Knew
In a small brick house strung year-round with Christmas lights, behind curtains made of flowered sheets, Jeremiah Smith is listening to his favorite preacher on the radio. As tonight's installment of the Gospels winds down, Smith, who has warm brown eyes and a shock of graying black hair, takes a seat at a table draped with a zebra-print cloth and piled high with papers and drifts back thirty years, to the brief period when he was a hog farmer. Like others in Anniston, Alabama, an industrial town with rural traditions, Smith used to raise vegetables and livestock in his yard to provide additional food for his family. "We were poor people," he says in a thick drawl. "We had to raise food ourselves.... We were trying to survive and live."
Smith planted potatoes and greens in his backyard. He also had a cow and rabbits, but most of his time and attention went to his hogs. In 1970 he had about fifty--too many for his small plot of land, so he led them, Pied Piper-like, past the old Bethel Baptist Church, the Lucky-7 Lounge and the labyrinth of pipes and smokestacks that surrounded the Monsanto chemical plant his father helped build, to a grassy hill where they could graze. Each evening before heading off to work the night shift at a pipe company, Smith would check on them, give them some feed and, when the need arose, he'd bring home some bacon.
One night, as he was feeding the hogs, a man from the Monsanto plant drove up the hill in a flatbed truck and made him an offer: $10 apiece for the hogs and a bottle of Log Cabin whiskey. The offer was intriguing. Smith had begun to notice that something was wrong with some of his hogs anyway; their mouths had turned green. And Smith, ever in need of cash, could hardly afford to pass up $500. He sold. But for more than twenty years, he wondered what on earth a chemical company would want with his hogs.
Problem: Damage to the ecological system by contamination from polychlorinated biphenyl (PCB).
Legal Liability: Direct lawsuits are possible. The materials are already present in nature having done their "alleged damage." All customers using the products have not been officially notified about known effects nor [do] our labels carry this information.
--Memo from Monsanto committee studying PCBs, 1969
People Jeremiah Smith's age are old enough to remember Monsanto's glory days in Anniston. The company provided well-paying jobs and helped nurture this friendly Southern town's sense of community. Residents used to marvel at the plant's well-manicured grounds, which the company sometimes let them use for Easter-egg hunts. Most never thought to connect Monsanto to some of the odder features of life in Anniston. Like the creek, known locally as "the ditch," which passed through town carrying water that ran red some days, purple on others and occasionally emitted a foggy white steam.
Public Image: The corporate image of Monsanto as a responsible member of the business world genuinely concerned with the welfare of our environment will be adversely affected with increased publicity....
Sources of Contamination: Although there may be some soil and air contamination involved, by far the most critical problem at present is water contamination.... Our manufacturing facilities sewered a sizable quantity of PCB's in a year's time....
--Monsanto committee memo, 1969
Over time, the residents of West Anniston, Alabama, came to believe they had been silently poisoned for decades by Monsanto. Many also believe that if the contamination had occurred in the more affluent (and more heavily white) east side of town, there would have been more scrutiny by the government. The change in attitude was spurred by what at first seemed like a straightforward real estate transaction between Monsanto and a local church.
In December 1995 Donald Stewart, a former state legislator who served briefly in the US Senate, was taking some time off from his legal practice when he received a phone call from a former client, Andrew Bowie. Bowie, a deacon at the Mars Hill Missionary Baptist Church, explained that a Monsanto manager had approached him about buying the church. "It doesn't seem like we're going to achieve a satisfactory deal," Bowie told Stewart. "I think we need a lawyer." Stewart agreed to help. "I thought it was a simple case," Stewart says. "And then it just mushroomed."
Stewart soon learned that Monsanto wanted to buy the church's property, which was across the street from its plant, because it had discovered high concentrations of PCBs in the area and was planning a cleanup. After an open meeting at the church, Stewart began fielding a flood of calls from concerned residents, who had a dizzying array of health problems they now attribute to the contamination. The neighborhood around the plant is populated by people with cancer, young women with damaged ovaries, children who are learning-impaired and people whose ailments have been diagnosed as acute toxic syndrome. (Medical studies have shown that PCBs cause liver problems, skin rashes and developmental and reproductive disorders in humans. The EPA says that, according to animal studies, they probably cause cancer.) In addition to the church, which filed its own suit against Monsanto, more than 3,000 Anniston residents who have high levels of PCBs in their blood and on their property have filed suit against the company since 1996, alleging that beginning in the sixties, the company knew it was introducing PCBs into the environment, knew the hazards of doing so, failed to inform the community and tried to conceal what it had done.
Monsanto denies the allegations. While it concedes that much of Anniston is contaminated by PCBs, the company says its chemical discharges were negligible--and maintains that it did not fully understand how PCBs affected the environment at the time they were released. "As soon as we discovered there were PCB discharges from the plant, we began our operations to limit and hopefully eliminate those discharges," says Bob Kaley, director of environmental affairs for Monsanto's now spun-off chemical division. "At the time, there were no federal regulations with regard to PCBs.... Everything was done voluntarily, and there was really almost no understanding of the effect of PCBs on the environment and human health." Kaley adds, "I think as we've moved forward in the past thirty years, there are potentially some effects at high levels in the environment. But we do not believe even today that there are concerns for human health at those environmental levels."
The case is beginning to attract the attention of environmental activists, 150 of whom will be taking a bus tour of the contaminated areas this month. The EPA is currently considering whether to order a federally monitored cleanup, and it may declare the area a Superfund site. The likelihood of that is enhanced by PCBs' number-six spot on the agency's list of toxic substances at contaminated sites.
Monsanto lawyers have had plenty of practice defending against liability, since the company has been named as a co-defendant in dozens of PCB suits across the country. The company's track record in court on this front is excellent; while Monsanto has settled a few suits, it has succeeded in getting the vast majority of complaints--most of which have been brought by companies that purchased the chemicals from Monsanto--thrown out by arguing that these companies knew what they were getting into.
But the Anniston case stands out in the annals of PCB litigation in the extent of damage to property and people it alleges. It is also among the first brought by ordinary citizens rather than sophisticated corporations. And this time Monsanto will have to confront its own paper trail in court. The black binders that the plaintiffs' lawyers have stuffed full of internal memorandums and reports, branded "Hot Documents" and "Hottest Documents" with yellow Post-it notes--many of which have never been seen by the public but which will become public record when the trial begins--make this an especially difficult defense to mount.
Karen McFarlane lives in plain view of the plant. It's a mild morning in February, and Karen didn't sleep much last night. Clothed only in a T-shirt and underwear, with a sweater draped over her lap, she lights her first cigarette of the morning--a bent Basic--and promptly drops it on the shaggy blue rug. Dakota, Karen's 16-month-old, is playing with the severed head of a Barbie knock-off and there's not much to eat in the house. But Karen has other worries. Outside, a chain-link fence, six feet high and capped by barbed wire, surrounds the gray Buccaneer trailer where she lives with her husband, Ryan, and their five children, blocking access to gray-green fields once populated by neighbors and small businesses that have been chased away by PCB contamination. "I never thought I'd say it, but I just want to get away from here," says Karen, who has lived in Anniston her whole life.
She has PCBs in her body fat. According to tests done by a local doctor, Ryan's blood has nearly triple the level considered "typical" in the United States; for Tiffany, their 6-year-old, it's double. Nathan, 8, has severe developmental problems, and everyone in the family suffers from respiratory problems and the skin rashes associated with PCB exposure. Chris, Karen's 11-year-old son, who's home from school with an upset stomach and is splayed out on the couch, lifts his Panthers basketball T-shirt to reveal brownish-red blotches climbing up the sides of his chest. "It smells like decaying flesh," Ryan warns. "Like it's rotten."
Most of their friends and family have already left, but the McFarlanes can't afford anything other than the small dirt lot where they park their trailer. Karen was recently hospitalized for respiratory-stress disorder and had two strokes at age 30. Her most recent Pap smear was abnormal, but she says she's too scared to have a follow-up exam. Ryan, who has small pink growths dotting his neck, wistfully talks of going to an oncologist for a full cancer screening, something he's unlikely to get soon because he doesn't have health insurance. The McFarlanes are stuck in a place where, according to the Alabama Department of Public Health, cancer rates are 25 percent higher than in the rest of the state.
Anniston was founded as a company town. In 1872, Samuel Noble, a British-born businessman, and Daniel Tyler, a Union general and a cousin of Aaron Burr, established Woodstock Iron in a then-barren outpost at the foot of the Appalachian Mountains. The company built a church, a schoolhouse and a general store. To guarantee the moral fiber of their fabricated utopia, the townspeople threw away their whiskey bottles, declared their own Prohibition and erected a fence around the town's perimeter, creating one of the nation's earliest gated communities. During World War I, chemical producers arrived, and in 1929, the Theodore Swann Company became the nation's first maker of PCBs, nonflammable chemicals that lubricate industrial systems that generate heat. By 1935 the Monsanto Company recognized PCBs as big business and bought Swann's Anniston facility. For close to forty years, Monsanto sold PCBs to companies like General Electric and Westinghouse, helping them insure that webs of electrical wires wouldn't burst into flames.
In the sixties Monsanto encountered a serious threat to its success. While chemical manufacturers throughout the country were scrutinizing the environmental impacts of their products amid growing pressure to reduce emissions, a team of Swedish researchers discovered PCBs in wildlife. For every electrical wire kept from overheating, some of the chemical had been escaping. This discovery, which received wide publicity in 1966, raised concerns for Monsanto, which worried that it would usher in governmental regulations limiting PCB use. "Truly the PCBs are a worldwide ecological problem," declared a company memo that included a list of concerns under the heading "Business Potential at Stake on a Worldwide Basis."
At the time, the government had not yet declared PCBs to be hazardous to human health, but suspicions had been growing for quite a while. As early as 1937 the medical community was examining PCBs to see if they were a public health hazard--a study published that year in the Journal of Industrial Hygiene and Toxicology suggested links between PCBs and liver disease. In the mid-fifties Monsanto researchers and executives began writing confidential memos describing their fears about the chemicals' toxic effects, but they drafted plans for continuing to sell them despite these suspicions. In 1956 Monsanto considered the chemicals toxic enough to give workers protective gear and clothing, and encourage them to hose off after each shift. Along with other chemical manufacturers, the company publicly expressed skepticism about PCBs' association with disease, but over the next decade the evidence became harder and harder to dismiss. In 1968 the links between PCBs and disease won wide credibility when residents of a Japanese town were harmed by consuming PCB-contaminated rice oil. Subsequent studies published in leading medical journals showed that PCBs damage the immune system, the reproductive system and the nervous and endocrine systems.
Monsanto had hundreds of millions in PCB sales to lose if regulators placed restrictions on their use. By 1969 the company established a committee to keep abreast of the state of knowledge on PCBs. The issue was beginning to look like "a monster," in the words of one former executive.
Make the Govt., States and Universities prove their case, but avoid as much confrontation as possible.... We can prove some things are OK at low concentration. Give Monsanto some defense.... We can't defend vs. everything. Some animals or fish or insects will be harmed.... The Dept. of Interior and/or state authorities could monitor plant outfall and find [discharges] of chlorinated biphenyls at...Anniston anytime they choose to do so. This would shut us down depending on what plants or animals they choose to find harmed....
--Monsanto researcher, September 1969
At issue in the lawsuit is whether the company was aware of the extent of the PCB contamination and whether it could have protected or warned the community. Many of the answers may be found in the documents.
In the late sixties Monsanto began keeping track of its PCB discharges in an attempt to reduce emissions. According to the company's July 1970 progress report, Monsanto was dumping about sixteen pounds a day of PCB waste into the town's waterways. It was a significant amount, but in the closed world of Monsanto executives, it almost seemed like good news--the year before, the company had been dumping about 250 pounds a day.
Monsanto went on the offensive, reporting to regulators at the now-defunct Alabama Water Improvement Commission that it was finding PCBs in the water near the plant. But the regulators, according to a company memo, agreed that "all written effluent level reports would be held confidential by the technical staff and would not be available to the public unless or until Monsanto released it." Monsanto never did.
To predict whether federal or state regulators would find the chemicals to be a threat to the environment or human health, Monsanto began commissioning animal toxicity studies; the results, in the early seventies, didn't look good. "Our interpretation is that the PCBs are exhibiting a greater degree of toxicity in this study than we had anticipated.... We have additional interim data which will perhaps be more discouraging," a company executive wrote. "We are repeating some of the experiments to confirm or deny the earlier findings and are not distributing the early results at this time."
Testing continued, but the results didn't get any better. In 1975 the lab submitted its findings from a two-year study of PCBs' effects on rats. An early draft of the report said that in some cases, PCBs had caused tumors. George Levinskas, Monsanto's manager for environmental assessment and toxicology, wrote to the lab's director: "May we request that the [PCB] 1254 report be amended to say 'does not appear to be carcinogenic.'"
The final report adopted the company's suggested language and dropped all references to tumors.
Anniston residents got their first glimpse of Monsanto's troubles with PCBs in late 1993. A contractor doing dredging work on the nearby Choccolocco Creek noticed largemouth bass with blistered scales. Tests showed the fish contained extremely high levels of PCBs. Around the same time, the Alabama Power Company broke ground on land it had acquired from Monsanto in the sixties, opening up a PCB landfill that bled black tar. Alabama Power insisted that Monsanto take back the land and reported its discovery to the Alabama Department of Environmental Management. Testing ordered by ADEM and carried out by Monsanto found that a wide swath of West Anniston and local waterways were highly contaminated with PCBs. Soon after, the company made its quiet buyout offer to the church.
The contamination came as news to residents, but Donald Stewart quickly discovered that Monsanto had known about it for decades. "There have been some big bonanzas," Stewart says of the internal company documents he has collected. "Someone's going to have to sit down somewhere in the bowels of that company and make it right."
Since Stewart had never handled a case like this before, he enlisted the help of a Mississippi firm and Kasowitz, Benson, Torres & Friedman, a New York firm that represented Liggett in the tobacco suits. Even with all that legal firepower, Stewart still has a formidable task ahead. "It just seems these folks have the skill and the capability to avoid having somebody pin the tail on their donkey. I mean, they've just been able to walk away from it," he says. "I can't wait to get before a jury to say, 'Well, this is what happened.' I'm looking forward to hearing how they're going to explain this away."
Early in 1970, we established a target of 10 ppb [parts per billion] of PCBs in our plant waste streams which we expected to achieve by the third quarter 1971. No specific target was established for the quantity of PCBs we could tolerate in the atmosphere. During the year as the plant gained tighter control of known sources of PCB pollution, it became increasingly obvious that the high levels would continue because of the PCBs trapped in the soil and in the sewer systems. Clean-up of these sources can be economically impractical.
--Former Monsanto plant manager, January 1971
Adam Peck, one of Monsanto's lawyers, isn't sweating it. The company, which spun off its chemical division as a stand-alone firm, Solutia, in 1997, assigned an environmental manager to lead a $30 million cleanup focusing on everything from a landfill where 150-200 million pounds of PCB waste are buried to waterways and contaminated land in the neighborhood. Beginning with the Mars Hill church, the company began buying out small businesses and residents in West Anniston. They bulldozed buildings, laid thick plastic tarps over the contaminated soil and covered them with clean soil. The company plans to convert some of the contaminated land into a wildlife refuge. It has built perching posts near the landfill to attract purple martins, and recently released salamanders into a pond that catches runoff water from the landfill.
In Peck's mind, these activities demonstrate convincingly that the corporation has behaved responsibly. "Our position is that when a jury hears all the evidence they will conclude that Monsanto and Solutia acted responsibly in the manufacture of PCBs and in efforts to remediate," he says. "I think liability will be for a jury to determine. We have offered to acquire property. We've offered to clean property. What does that mean? Does that mean we acted responsibly or that we should have done more?" After a pause, he adds, "I'm not sure what more we could have done."
Peck says Monsanto didn't notify the community about the PCB releases years ago because at the time there wasn't sufficient understanding of how the chemicals migrated through the environment. Yet one of the documents Stewart obtained, a sample Q&A on PCBs produced by Monsanto for its customers in 1972, reads in part: "PCB is a persistent chemical which builds up in the environment. It, therefore, should not be allowed to escape to the environment." Peck continues: "And if you think about it from the perspective of the plant manager and the folks who were there at the time, the levels that were escaping the plant were extremely small compared to the levels that those guys were working with on a daily basis. They weren't worried for their own health. Why should they be thinking the minute levels that are escaping are of any concern to anybody outside there?" The protective gear worn by workers, Peck insists, was simply routine.
Ryan McFarlane is lumbering across the dirt lot outside his trailer. Overweight and easily winded, he moves slowly past a broken trampoline to a set of wire pens that house his chickens. Undersized and lethargic, they huddle in the corners of the rusty pens, occasionally exhaling a thin cluck. For years, Ryan raised chickens for food. But these days, knowing they are probably contaminated, and since his health problems have kept him from working for the past five years, Ryan keeps chickens around to give him something to do.
Until the PCB contamination came to light, the McFarlanes, like many of their friends and former neighbors, regularly ate fish from the creeks, and chicken and vegetables raised in their yards. They might have given the practice up long before if Monsanto had told Jeremiah Smith in 1970 when it bought his hogs that it made the purchase because it was worried that people were eating PCB-contaminated pork. (Monsanto admits that the hogs were later shot and buried, although the company contends that its concern about PCB contamination was secondary to its concern about the hogs' trespassing on its property.) The Agency for Toxic Substances and Disease Registry, a division of the US Department of Health and Human Services, completed a health study in Anniston in February, which found that PCB exposure in the town is a public health hazard. It also suggested that eating local pork, fish and chicken has been a major source of PCB contamination. The EPA says eating PCB-contaminated food is one of the most dangerous means of exposure because PCBs biomagnify, or increase in intensity, as they travel up the food chain.
Residents are anxiously awaiting the EPA's decision on whether to order a federal cleanup. "All they want to do, seem like, is study, study, study, we got to study some more," says one plaintiff in the case. The lawsuit is also taking longer than residents anticipated. Two weeks before the case was to go to trial, in March 1999, Monsanto appealed to the state Supreme Court to establish procedural rules for the circuit court. Now, more than a year later, the Court still hasn't returned its rulings. In the meantime, Stewart prepares for trial and works on other cases. He's hoping the jury will award compensatory damages for the property contamination and punitive damages for the fear the exposure has engendered. He also wants Monsanto to pay for regular health screenings. Early settlement talks went nowhere, both sides say.
Monsanto did settle the original suit on behalf of the Mars Hill congregation. It made no admission of guilt but paid $2.5 million to rebuild the church at another location. "In the Mars Hill case they protested all the time that they didn't do a thing," Stewart says. "Then they paid $2.5 million for a church they said was worth $400,000. Sounds like they did something, to me. Now, I'm just a small-town country lawyer, but I wonder how they arrived at that decision."