The People v Monsanto
Nancy Beiles / Guardian 5jun00
|For decades the GM food giant brought much-needed jobs to the people of Anniston, Alabama. Now more than 3,000 residents believe they have been poisoned by the company - and are determined to prove it in court. Nancy Beiles reports from a town where the river ran red|
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
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, he takes a seat at a table draped with a zebra-print cloth and drifts back 30 years, to the brief period when he was a pig farmer. Like others in Anniston, Alabama, 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 also had a cow and rabbits, but most of his time and attention went to his pigs. In 1970 he had about 50 - too many for his small plot of land, so he led them past 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, Smith would give them some feed and, when the need arose, he would bring home some bacon.
One night, as he was feeding the pigs, a man from the Monsanto plant drove up the hill and made him an offer: $10 apiece for the pigs and a bottle of whisky. Smith had begun to notice that something was wrong with some of his pigs anyway; their mouths had turned green. And, ever in need of cash, he could hardly afford to pass up $500. He sold. But for more than 20 years, he wondered what on earth a chemical company would want with his pigs.
Many people Jeremiah Smith's age are old enough to remember Monsanto's glory days in Anniston. The company provided well-paid jobs and helped nurture this friendly southern town's sense of community. Most never thought to connect the chemical industry to some of the odder features of life there. 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.
But over time, the residents of Anniston came to believe that they had been poisoned for decades by Monsanto. The change in attitude was spurred by what at first seemed a straightforward real estate transaction. In December 1995, Donald Stewart, a former state legislator who served briefly in the US Senate, received a phone call from Andrew Bowie. A deacon at the Mars Hill Missionary Baptist church, Bowie 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."
"I thought it was a simple case," Stewart says. "It just mushroomed."
Stewart soon learned that Monsanto wanted to buy the church because it had discovered high concentrations of PCBs in the area and was planning a clean-up.
Before production was restricted in the US, PCBs were used as insulating material in various types of electrical appliances, including television sets. They are non-flammable and take the form of either oily liquids or solids.
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 which 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. The question is, are these illnesses caused by exposure to PCBs? Medical studies have shown that PCBs may cause liver problems, skin rashes and developmental and reproductive disorders in humans, and the US department of health and human services has determined that PCBs "may reasonably be anticipated to be carcinogens".
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 suits against the company since 1996, alleging that 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.
Karen McFarlane lives in plain view of the plant. It's a mild morning in February and she 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 and promptly drops it on the shaggy blue rug. Dakota, McFarlane'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: she has PCBs in her body fat.
According to tests done by a local doctor, her husband Ryan's blood has nearly triple the level considered "typical" in the US; for Tiffany, their six-year-old, it's double. Nathan, eight, has severe developmental problems, and everyone in the family suffers from respiratory problems and the skin rashes associated with PCB exposure. Chris, McFarlane's 11-year-old son, lifts his 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 to. Karen was recently hospitalized for respiratory-stress disorder and had two strokes at the age of 30. 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 does not have health insurance. The McFarlanes are stuck in a place where, according to the Alabama department of public health, cancer rates are 25% higher than in the rest of the state. Whether these health problems are linked to Monsanto's PCBs is at the heart of the case.
While it concedes that much of Anniston is contaminated by PCBs, Monsanto 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, in the 60s and 70s. The US government didn't restrict the manufacture of PCBs until 1979.
"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 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. I think as we've moved forward in the past 30 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 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 corporations. The black binders the plaintiffs' lawyers have filled with internal memorandums and reports are branded "Hot Documents" and "Hottest Documents" with yellow Post-it notes. Many have never been seen by the public but they will become public record when the trial begins and could make or break Monsanto's defense.
The chemical producers arrived in Anniston during the first world war, and in 1929, the Theodore Swann Company became the nation's first maker of PCBs. By 1935 Monsanto recognised PCBs as big business and bought Swann's Anniston facility.
In the 60s, a team of Swedish researchers discovered that PCBs were present in the environment. Each time the chemical prevented an electrical wire from overheating, some of it had been escaping.
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. In 1956 Monsanto considered the chemicals toxic enough to give workers protective gear and clothing. Along with other chemical manufacturers, the company publicly expressed skepticism about PCBs' association with disease, but over the next decade the evidence became harder to ignore. Studies published in leading medical journals showed that PCBs may damage the immune system, the reproductive system and the nervous and endocrine systems.
Monsanto had hundreds of millions of dollars in PCB sales to lose if regulators placed restrictions on 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.
"The Dept of Interior and/or
state authorities could monitor plant outfall and find [discharges] of
chlorinated biphenyls at . . . Anniston anytime they choose. This would shut us
down depending on what plants or animals they choose to find harmed."
Monsanto researcher, 1969
At issue in the Anniston lawsuit is whether the company was aware of the extent and harmful effects of the PCB contamination and whether it could have protected or warned the community. Many of the answers may be found in the documents. According to a 1970 report, Monsanto was dumping about 7.2kg (16lb) a day of PCB waste into the town's waterways. The year before, the company had been dumping about 113kg (250lbs) a day.
Monsanto began commissioning animal toxicity studies in the early 70s; the results did not look good. "Our interpretation is that the PCBs are exhibiting a greater degree of toxicity in this study than we had anticipated," an executive wrote.
In 1975 the lab submitted its findings from a study using rats. An early draft said that in some cases, PCBs had caused tumours. George Levinskas, a Monsanto manager, wrote to the lab's director: "May we request that the report be amended to say 'does not appear to be carcinogenic'." The final report dropped all references to tumours.
Anniston residents got their first glimpse of Monsanto's troubles with PCBs in late 1993. A contractor dredging 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 60s, 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. Soon after, the company made its quiet buyout offer to the church.
But Adam Peck, one of Monsanto's lawyers, isn't sweating. The company, which spun off its chemical division as a stand-alone firm, Solutia, in 1997, assigned an environmental manager to lead a $30m clean-up operation. They bulldozed buildings, laid thick plastic tarpaulins over the contaminated land 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. In Peck's mind, these activities demonstrate convincingly that the corporation has behaved responsibly. "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."
Residents are anxiously awaiting the EPA's decision on whether to order a federal clean-up. 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. 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 $2.5m (£1.5m) 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 $2.5m for a church they said was worth $400,000. I wonder how they arrived at that decision."
After he sold them, Jeremiah Smith's pigs were shot and buried. Why? Because, Monsanto says, it was concerned about them trespassing on company property.
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