Studer Community Institute

Suit doesn't rule out Escambia Bay cleanup

October 21, 2014
/ William Rabb
/ community-dashboard

Some 45 years after Monsanto Co. allowed cancer-causing chemicals to flow into Escambia Bay, a Pensacola judge has ruled that a massive cleanup of the bay and river is not off the table. The recent ruling by Escambia County Circuit Judge Jan Shackelford is the latest development in a lawsuit that began in 2008. If the plaintiffs prevail, a cleanup could result in a remediation process that could cost more than $400 million – perhaps something like the years-long effort now under way on the Hudson River in New York State, where General Electric Co. dumped the same types of PCB compounds decades ago. The lawsuit was filed by 50 homeowners and businesses around Escambia Bay, who contend that Monsanto and its successor companies damaged their use of the bay and contaminated seafood with PCBs, or polychlorinated biphenyls. PCBs have been classed as probable human carcinogens. The lawsuit, now in its 37^th volume of filings, has produced a raft of new studies and expert analyses that paint a grim picture of how the companies and regulators may have failed to properly deal with PCB leaks and runoff over the past half-century. Plaintiffs' experts contend:

The hazardous compounds are still seeping from the plant site in Gonzalez.
The plant allowed PCBs to drain into nearby waterways, constituting an unpermitted discharge, in violation of state law.
Recent soil and sediment samplings show high levels of the compounds on the plant site, in the river and the bay.
Monsanto hid information from regulators and failed to take measures that would have prevented widespread contamination.
The PCBs threaten dolphins and cormorants because levels in some hot spots are 780 times higher than federal protection limits.
PCBs in bay oysters declined from 1989 to 1994, but have remained steady since then – suggesting contaminants are still entering the bay.
State and federal authorities have done little to address the contamination, despite guidelines that call for concern.

The defendant companies have denied any wrongdoing, and said they have worked closely with regulators to prevent discharges of the chemicals to the river and bay. “The property owners who brought this lawsuit do not have PCBs from the plant on their properties, in their homes, or in the sediments adjacent to their properties,” reads a statement from Pensacola attorney Steve Bolton, who represents the defendant companies. “They, as can the entire Escambia Bay, Pensacola, and Milton communities, safely enjoy the wide range of benefits the bay provides.” The companies declined to talk about the specifics of the litigation, but said a cleanup of the bay would be “unnecessary, given the absence of any health risk posed by the ultra-low concentrations in the Bay,” Bolton said. Defendants Monsanto, its successor companies Solutia Inc. and Pharmacia Inc. and the new plant owner, Ascend Performance Materials, early on offered a $1,000 settlement for each plaintiff, which most of them rejected. The case, known as John Allen et al vs. Monsanto et al, may go to trial early next year. Both sides have asked for a jury. [sidebar] Defense experts have also said that plaintiffs' studies have misinterpreted sediment data, and suggest that PCBs on the bay floor could also have come from Gulf Power's Plant Crist generating station on the river, and from the former Air Products and Chemicals plant in Pace. Those companies strongly refute that suggestion, saying that they have no evidence that PCBs were ever used in quantity or spilled at their plant sites. The plaintiffs are asking for monetary damages, but also that the defendants be required to pay for remediation of the contaminated areas around the plant site, in the riverbed and on the floor of Escambia Bay, where mullet, crab and other marine life live and feed. The defendants this summer asked the judge to dismiss that part of the lawsuit, arguing that remediation would cost far more than any damages the plaintiffs may have suffered. Shackelford denied the request, and agreed with the plaintiffs that before remediation could be ordered, a thorough site plan of the bay and contaminated lands would have to be done, a step that itself could cost between $2.6 million and $5.1 million, according to expert witnesses the judge relied on. [/sidebar] Since initial news reports when the suit was filed, the health threats highlighted by the case have been not received much attention. Some locals have taken it upon themselves to spread the word. “Don't eat the mullet, and don't eat the crab unless you take the fatty tissue out first,” plaintiff Sherry Starling, a former state environmental inspector, said recently at a public gathering of concerned citizens. The long arm of PCBs Because PCBs build up in the food chain, even tiny amounts in sediment can end up being hazardous to wildlife and humans, experts said. Some of the studies have shown hot spots as high as 118 parts per billion (ppb) in bay sediment and 3,690 parts ppb in the river sediment. Florida sediment guidelines set 22 ppb as a “possible effects level” and 189 ppb as a “probable effects level” for biological damage. [sidebar] Polychlorinated biphenyls, produced by combining chlorine and benzene, were once hailed as a miracle compound by industry because they can withstand extreme heat while retaining their lubricating and insulating properties in electrical and other equipment. Although most are oily compounds, they are heavier than water and sink into sediment. By the 1970s, PCBs had been shown to cause cancer and other health problems, kill marine life and damage bird eggs the world over. They were mostly banned by Congress in 1977, but some PCBs break down so slowly that they could be toxic in sediment for hundreds of years, studies show. Monsanto, a global company that started more than 100 years ago and was the sole U.S. manufacturer of PCBs, has acknowledged that PCBs were used at its nylon plant on the Escambia River, eight miles north of Pensacola, and that they leaked from air compressors in late 1960s. Documents show the plant allowed as much as three gallons a day to drain into ditches that led to the river. The defendant companies have said that any seepage from the site today is “de minimus,” and contaminated areas in the bay are at concentrations below levels of concern. [/sidebar] Carl Mohrherr, a retired UWF biologist, and others said those state thresholds are misleadingly high: They only refer to immediate effects on organisms, and do not reflect how the poison can accumulate in a body to more dangerous levels. Some plaintiffs' experts suggested there's no safe level for the compounds, and that Monsanto should have taken more precautions. “Monsanto documents show that the company had both the knowledge and technology available to prevent PCBs from being discharged into Eagle's Nest Creek and the Escambia River,” another plaintiffs' witness, professor Jack Matson of Pennsylvania State University, reported. Studies going back to 1969 also have documented the existence of PCBs and a host of other contaminants, including the banned pesticide DDT, in the bay and river. A 2009 report by UWF scientists Mohrherr, Johan Liebens and Ranga Rao may have been the first to suggest remediation as an answer: “...the only safe cleanup level for PCBs relative to human consumption of seafood will be sediment concentrations that are below current analytical detection limits.” But Mohrherr cautioned that a cleanup of bay hot spots would do little good if PCBs are still coming from the river or plant site. Any cleanup would be expensive and could take many forms, experts have said, including dredging parts of the bay and river below the plant site, or capping contaminated spots with clay. Other ideas include utilizing bacteria that break down the PCBs to less-toxic molecules, a process now under investigation at a number of laboratories, according to published studies. Any course of action could be a huge undertaking. On the Hudson River, named an EPA Superfund site in 1984, crews are dredging 40 miles of river bottom, and plan to replace it with clean soil in a project expected to last another four years and cost more than $500 million. GE has agreed to pay at least part of the cost. Monsanto, like GE, may be able to afford an expensive cleanup plan. The company sold the Pensacola nylon plant in 2009, but could still be held liable. Now an agricultural giant, Monsanto reported almost $2.5 billion in annual profits for 2013, the company's annual report shows. Monsanto has a history of disregarding environmental problems resulting from their products, said plaintiffs' lawyer Don Stewart of Anniston, Ala. “They've been a pretty thuggish company,” he said. Stewart is familiar with Monsanto's tactics: He was the lead lawyer who in 2002 won a $700 million judgment against Monsanto for extensive PCB pollution around its manufacturing plant in Anniston. (After a brief initial conversation, Stewart did not return emails and phone calls for this article.) Advising public of health concerns The man who may have done more than anyone to prompt concerns about the PCBs in Escambia waters is Dick Snyder, director of the University of West Florida's Center for Environmental Diagnostics and Bioremediation. He and colleagues Rao and Natalie Karouna-Renier conducted studies in 2007 and 2008 that showed PCBs in the tissue of a wide variety of fish, oysters and crab. Concentrations were particularly high in striped mullet, bottom feeders that are a staple of many Pensacola-area consumers' diet. When PCBs in fish reach a certain level, the EPA considers that a screening threshold at which consumers should be warned. That means consumers eating the fish more than once a week stand a one in 10,000 chance of getting cancer over many years. Some of the mullet in Snyder's studies had levels 300 times the EPA threshold, giving consumers a significantly elevated risk if they eat the contaminated mullet on a regular basis. “Consumption of some finfish harvested from the Escambia River and Escambia Bay pose a significant risk of cancer and non-cancer health hazards due to contamination from PCBs...” wrote plaintiffs' expert Harlee Strauss, a molecular biologist and environmental risk assessment consultant. But Snyder, whose studies are repeatedly quoted in the lawsuit, believes that dredging the bay could do more harm than good. “Disturbing the sediments may well create more exposure than it would solve,” Snyder told PensacolaToday.com. “I think the best outcome was what we did, which was to alert the public to the problem. But, unfortunately, the Florida Department of Health has not continued to monitor the problem and provide updated information.” The state Health Department posts a fish consumption advisory on its website, warning people not to eat more than one meal a week of skinless striped mullet that was caught in the lower Escambia River or Escambia Bay. Plaintiffs in the lawsuit and others have suggested that advisory is inadequate: mullet range far and wide, and could easily feed on PCBs in upper Escambia Bay, only to be caught in Pensacola Bay, in the sound or in the Gulf. “I don't think that advisory does a whole heck of a lot of good,” said Chips Kirschenfeld, senior scientist and division manager for Escambia County's Water Quality and Land Management Division. “You go to a restaurant, you don't know where the fish comes from.”

In late 2007, after the UWF studies and news reports about it were published, the Escambia County Health Department posted advisory signs at boat launches and secured billboard advertising that explained the risks. But in recent years, those signs have disappeared. “A sign like that wouldn't last too long around here, anyway,” said Rick Sconiers, who runs Jim's Fish Camp, a boat launch and shop near the eastern edge of the U.S. 90 bridge on Escambia Bay. “A fisherman would probably take that down.” Local seafood shops said they have continued to sell mullet, crab and other bay species caught by local fishermen, with little awareness of the dangers. Although experts say that blue crab should be cleaned of its tomalley, or fatty tissues and organs, before it's boiled, “most people just boil them whole,” said Phil Rollo, owner of Rollo's Seafood in Milton, who regularly buys bay crab from local crabbers. “Well, you have given me a lot to think about,” said Alesia Wilkes, a manager at Joe Patti's Seafood in Pensacola, when asked about potential PCBs in local seafood. “We do not post anything in store currently to the effects of this, but we would never deny the truth to a customer.” Much of the seafood sold at Joe Patti's comes from outside Escambia Bay, including Mobile Bay and Apalachicola, she said. While some mullet lovers discard the skin these days, local fishermen and seafood sellers all say the same thing: The old-timers like the taste of skin-on mullet.

“My dad never took the skin off,” said Daniel Mabire, who has spent his life on the waters of Escambia Bay. The Santa Rosa County Health Department is developing fliers explaining the fish advisory, to be left at places where fishing licenses are sold, said Deborah Stilphen, public information officer at the department. “It was determined that posting signs would be impractical because of the amount of information that would have to be included,” she said. Santa Rosa and Escambia Health Departments said they have no plans for posting signs or flyers at restaurants or seafood markets, and no plans to include crab in future advisories. “We're constantly pushing people to go to the web site, and we have brochures in the office,” said Marie Mott, public information officer for the Escambia Department of Health. Where are state authorities? Legally speaking, ordering even a limited cleanup of the bay or river could be problematic. Monsanto and co-defendants in the lawsuit have argued that under the legal doctrine known as primary jurisdiction, only the state Department of Environmental Protection can order such remediation. Plaintiffs' lawyers and legal scholars, though, said that a court could step in if the state agency shows no signs of taking action. Stewart said that plaintiffs and others through the years had, in fact, tried unsuccessfully to get the DEP to order the waterways cleaned. And that raises a key question for a number of local environmental activists: If Escambia River and Bay are known to have been contaminated since the early 1970s, and recent studies suggest the contamination is continuing, why hasn't the EPA or DEP shown more interest? Court documents in the case show that EPA officials in 2002 were aware of PCBs continuing to leak into the river, but did not force action. Part of that may have been the result of a decades-long shift in environmental protection nationwide. Dawn Harris-Young with the U.S. Environmental Protection Agency in Atlanta said that when sediment and fish-tissue levels reach a certain threshold, it's now considered the state's responsibility to take action, perhaps going so far as ordering a fishing ban in the bay. Florida environmental experts say that's less than likely to happen. “The state talks a good show, but they don't really do anything,” said Rich Wiecowicz, a retired wastewater engineer at DEP who studied industrial discharge issues for years. “The DEP has a history of being reluctant to hammer down on industries that provide jobs,” Kirschenfeld said. DEP officials declined to comment for this article, except to say the agency has no plans to take any legal action. DEP's own published guidelines suggest that when PCB concentrations in sediment rise above probable effects levels, the agency should make it a “high priority” to investigate further and determine what remedial measures are needed. State law also appears to allow the agency to prosecute polluting offenders. Monsanto, in fact, relies on regulators' inaction as a defense: “The lack of a formal regulatory response by DEP and EPA, with respect to PCBs in Escambia Bay, indicates that this is a region where risks of chemical contaminants are low and/or adequately managed,” wrote Charles Menzie, a scientific witness for the defendants. It's also possible that local authorities, such as the state prosecutor or county attorney, could bring legal action, some have suggested. Escambia County Attorney Allison Rogers said such an idea “is definitely a possibility; I just don't know much about this situation.” Escambia County may have already taken a step in that direction. In 2008, the county received a $200,000 grant from the Legislature to sample upper bay sediment for a possible remediation project. More than 500 samples showed 25 sites with PCB concentrations at or above the state's probable effects level. Most of those were clustered near the mouth of the Escambia River, suggesting that dredging just that area of the bay would remove significant amounts of the chemicals, said Kirschenfeld, who lead the project. But after the recession hit, the Legislature declined to fund any remediation work. “I plan to submit a request again this year,” he said. PCB concentrations remain high in areas In the Pensacola lawsuit, other scientific experts have produced several reports that have raised a number of red flags. The reports show that PCBs in high concentrations have been found on the plant site as recently as 2010 and 2012. Soil samplings from 1999 on the plant site showed levels as high as 24,300 parts per billion, or almost 10 times the state's cleanup target levels. In 2011, another soil sample taken near plant holding ponds found PCBs at levels 80 times the cleanup target level. The next year, samples from the creek bed adjacent to former holding ponds at the site, show Aroclor 1254, Monsanto's most-often used PCB product, at levels ranging from 12 to 350 parts per billion. These sources and others likely have continued to release PCBs into the Escambia River, said plaintiffs expert Matson, a professor emeritus in environmental engineering at Pennsylvania State University. “Monsanto documents show that the company had both the knowledge and the technology available to prevent PCBs from being discharged into Eagle's Nest Creek and the Escambia River,” reads Matson's report. At another Monsanto plant, for example, the company built what's known as a “concrete bathtub” to collect all drainage, and used absorbent material to remove contaminants from wastewater, Matson said. In 1971, state environmental authorities cited Monsanto for violating regulations by allowing PCBs to drain from the plant site. But the company only addressed one source of the drainage, and the state did not follow up, Matson said in his March 2014 deposition. A $65,000 containment area would have prevented a legacy of contamination, Matson said: “They could have zippered up this plant so that what has happened wouldn't have happened.” Another plaintiffs' expert raised concerns about continuing pollution after 2012 soil samplings showed PCBs at five spots. “It is evident that PCBs are migrating to the Escambia River and concentrating within the depositional environments of the river,” wrote Ronald Scrudato, director of technology at Global Green Environmental, which specializes in removal of toxic materials from soil and wastewater. Not from us, Monsanto says The defense team has faulted these experts, saying the PCBs found in some samplings were different from the types of PCBs used by Monsanto, and that some of the higher concentrations were found further downstream, near Plant Crist. Gulf Power officials were surprised to hear that claim. “We don't know of any kind of PCB discharge at Plant Crist,” said spokesman Jeff Rogers. The utility made an effort in the 1990s to remove any traces of PCBs in equipment at the plant, and crews regularly test for hazardous chemicals, he said. Defense consultant Wayne Grip pointed out that in 1999, Gulf Power did obtain a permit to burn waste oil, which may have contained PCBs. Rogers said company engineers have shown that the amount of the compounds in the oil were so small, and were incinerated so completely, that they could not have contaminated any sediment. The defense also has offered what a casual observer might call hair-splitting: One section of state law allows damages to be awarded because of a pollution discharge, but only if the contaminants came from a “terminal facility,” such as the barge dock on the northeast corner of the Monsanto plant site. Monsanto released PCBs only from an outfall ditch a few hundred yards to the south, so therefore did not violate the law, according to a defense motion. The Monsanto lawyers also offered another interesting defense: The company couldn't have violated any state sediment pollution standards because Florida has none for PCBs. The DEP didn't establish numerical water quality standards until 1990, and it still has no real sediment standards. The agency has published only Sediment Quality Assessment Guidelines, which encourage investigations of contamination when it rises above a certain level, but do not require any action. The lawsuit also provides a rare glimpse into Monsanto's corporate mindset in the late 1960s. Shortly after controversy over PCBs spread worldwide, but before contamination in Escambia Bay was widely known, Monsanto established a “PCB Committee” to discuss its options, according to an August 1969 hand-written company memo that was included in the court files. In Pensacola, the memo notes that state officials had visited the nylon plant, but asked “no real searching questions...Lid probably on for the moment.”

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Suit doesn't rule out Escambia Bay cleanup

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