'Fraud' protects US chemical giant

September 28, 1994

By Peter Montague

An internal memorandum by an official of the US Environmental Protection Agency has accused EPA of conducting a "fraudulent" criminal investigation of Monsanto, the St Louis chemical corporation.

The 30-page memo, from William Sanjour to his supervisor, David Bussard, dated July 20, 1994, describes a two-year-long criminal investigation of Monsanto by EPA's Office of Criminal Investigation (OCI).

The Sanjour memo says EPA opened its investigation on August 20, 1990, and formally closed it on August 7, 1992. "However, the investigation itself and the basis for closing the investigation were fraudulent", the Sanjour memo says.

According to the memo:

  • EPA's investigation of Monsanto was precipitated by a memo dated February 23, 1990, from EPA's Dr Cate Jenkins to Raymond Loehr, head of EPA's Science Advisory Board.

  • The Jenkins memo said that EPA had set dioxin standards relying on flawed Monsanto-sponsored studies of Monsanto workers exposed to dioxin, studies that had showed no cancer increases among heavily exposed workers.

  • Attached to the Jenkins memo was a portion of a legal brief filed by the plaintiffs as part of a trial known as Kemner v. Monsanto, in which a group of citizens in Sturgeon, Missouri, had sued Monsanto for alleged injuries during a chemical spill caused by a train derailment in 1979.

  • The Jenkins memo had not requested a criminal investigation; instead Jenkins had suggested a scientific investigation of Monsanto's dioxin studies. But in August 1990, EPA's OCI wrote a seven-page memo recommending that a "full field criminal investigation be initiated by OCI".

  • Plaintiffs in the Kemner suit made the following allegations:

"Monsanto failed to notify and lied to its workers about the presence and danger of dioxin in its chlorophenol plant ...

"Monsanto knowingly dumped 30 to 40 pounds of dioxin a day into the Mississippi River between 1970 and 1977 which could enter the St Louis food chain;

"Monsanto lied to EPA that it had no knowledge that its plant effluent contained dioxin;

"Monsanto secretly tested the corpses of people killed by accident in St Louis for the presence of dioxin and found it in every case ...

"Lysol, a product made from Monsanto's Santophen, was contaminated with dioxin with Monsanto's knowledge." [The Sanjour memo says that, at the time of the contamination, "Lysol (was) recommended for cleaning babies' toys and for other cleaning activities involving human contact".]

"The manufacturer of Lysol was not told about the dioxin by Monsanto ...

"Other companies using Santophen, who specifically asked about the presence of dioxin, were lied to by Monsanto ...

"Shortly after a spill in the Monsanto chlorophenol plant, OSHA measured dioxin on the plant walls. Monsanto conducted its own measurements, which were higher than OSHA's, but they issued a press release to the public and lied to OSHA and their workers saying they had failed to confirm OSHA's findings;

"Exposed Monsanto workers were not told of the presence of dioxin and were not given protective clothing ...

"Even though the Toxic Substances Control Act requires chemical companies to report the presence of hazardous substances in their products to EPA, Monsanto never gave notice and lied to EPA in reports;

"At one time Monsanto lied to EPA saying that it could not test its products for dioxin because dioxin was too toxic to handle in its labs."

OCI's August memo alleged that Monsanto did, in fact, produce "research" to defend its position. "The record however, shows a deliberate course of conduct designed to convince its employees and the world that dioxin is harmless", the OCI memo said.

OCI's memo recommended a full field criminal investigation. "In addition to ... conspiracy, substantive violations of the Toxic Substances Control Act seem to exist for Monsanto's failure to report to EPA ... the adverse health effects of 2,3,7,8-TCDD. Violations of 18 USC 1001 also appear to exist, although the statute of limitations may have run." Eighteen USC 1001 is a federal law outlawing false statements on any matter within the jurisdiction of any agency of the government.

The criminal investigation was opened on August 20 and was formally closed two years later with Monsanto neither found innocent nor found guilty. OCI said it did not finish its investigation because some of the alleged criminal activities were more than five years old and thus could not be prosecuted; further, it found that the government had not relied on Monsanto's "allegedly fraudulent studies" in setting regulations.

The Sanjour memo is a documentary history of EPA's two-year investigation, based on a Freedom of Information Act request for all documents related to the investigation.

Sanjour writes: "One gets the impression, on reviewing the record, that as soon as the criminal investigation began, a whole bunch of wet blankets were thrown over it. Almost nothing appears in the record about the first three charges [in the OCI memo] once the investigation began. The investigation concentrated on criminal fraud in the Monsanto studies."

A finding of criminal fraud would have required first a finding that Monsanto's studies were scientifically flawed. Only an analysis by government scientists could have reached such a conclusion, and no EPA scientists were engaged in EPA's Monsanto investigation.

"None of the scientific groups in EPA, it seems, wanted to touch this hot potato, and no one in position of authority was instructing them to do so", Sanjour writes. This left the criminal investigation crippled.

Rather than investigating all the allegations regarding Monsanto, EPA actually spent two years investigating Cate Jenkins, the whistle-blower whose memo precipitated EPA's criminal probe of Monsanto.

After OCI investigators interviewed Jenkins she wrote them a memo on November 15, 1990, (and another on January 24, 1991), describing ways that agencies of the US government — including EPA and the Veterans Administration (VA) — had relied on the Monsanto studies in setting regulations and policies. (Sanjour points out that OCI had to ignore Jenkins' lengthy, detailed memos in closing the investigation on the grounds OCI stated.)

Jenkins said the VA used the Monsanto studies to deny benefits to thousands of Vietnam veterans who claimed their wartime exposure to dioxin and Agent Orange had caused cancer and other diseases.

When Jenkins released her November 15 memo to the press, it was the first the world had heard of EPA's criminal investigation of Monsanto, and it made headlines. Veterans' organisations awarded Jenkins a plaque for exemplary service.

EPA punished Jenkins for her whistle-blowing by giving her no assignments during almost two years; in April 1992 she was finally given work, but it was clerical. She holds a PhD in chemistry. Jenkins filed a complaint with the Department of Labor. The department found that she was being illegally harassed. But EPA appealed that decision to an administrative law judge, thus continuing the harassment. The judge ruled in Jenkins' favour, but EPA appealed again, this time to the secretary of Labor. He eventually found in Jenkins' favour. Jenkins was reinstated and her attorneys fees were paid.
[Abridged from Rachel's Hazardous Waste News (US).]

You need Green Left, and we need you!

Green Left is funded by contributions from readers and supporters. Help us reach our funding target.

Make a One-off Donation or choose from one of our Monthly Donation options.

Become a supporter to get the digital edition for $5 per month or the print edition for $10 per month. One-time payment options are available.

You can also call 1800 634 206 to make a donation or to become a supporter. Thank you.