BLACK MAGIC
BIOSOLIDS: DISPROPORTIONATE IMPACT ON BLACK COMMUNITIES
In a 2004 study of land application of biosolids published in the National Institutes of Health journal, Environmental Health Perspectives, David Gattie, a UGA professor of engineering, and I wrote:1
One outcome of local bans is that land application of sewage sludge is being forced out of areas where residents have the political and economic resources to oppose the practice and into economically depressed areas. Whether this is intentional or not, sewage sludge is being dumped more and more into those communities least able to have their complaints heard, and where residents are least capable of relocating or obtaining medical treatment.
Currently, we are assisting Billups Grove Baptist Church in Athens, Georgia, where members of its congregation are suffering adverse health effects from the city’s biosolids composting operation close to the church (see Appendix III: Some Things Never Change). This historic church, which was organized in 1898 by former slaves, holds an annual march to the Athens–Clarke County landfill and biosolids operation on the first or second Saturday of May. In 2013, the march was replaced by an outdoor event at the Valley of Billups Grove, which we built in Oconee County with funds donated by the Segal Family Foundation and Focus Autism, Inc. The Valley provides the Billups Grove community with a place for holding outdoor events away from the stench of biosolids.
In 2013, Steve Wing, Amy Lowman, and others at the University of North Carolina (UNC) followed up with a survey of thirty-four individuals, ages thirty-five through eighty-three, living near biosolids land application sites in North Carolina, South Carolina, and Virginia (twenty-one white, twelve African American, and one Hispanic).2 Nearly all of the residents reported offensive odors, which some described as “unbearable.” Others “got used to it,” and one reported, “It don’t bother me.” The odors lasted from two days to six months after application. Consistent with what we reported in 2002, over half of the residents complained of eye, nose, and throat irritations and gastrointestinal symptoms (nausea, vomiting, diarrhea).3 Other symptoms included coughing, difficulty breathing, sinus congestion or drainage, and skin infections or sores.
About one-third of residents in Lowman’s study noted changes in the natural environment. Seven reported more deaths and illness among livestock and water life. For example, one resident reported:
I look at the sludge on this slope—when they put it out, if it rains, this water flows down in this branch. . . . Now there is no fish or anything that lives in these little branches. No crawdads, anything. . . . When I was growing up, we’d go there and I would fish for them and so forth. But all this is gone. . . . So that is saying something has killed all this stuff.
Five reported a change in private well water, including “green slime” and odor. For example, one man said:
My well . . . water had an awful smell to it, and a green slime . . . like three months [after sludge application]. . . . Before they [applied sludge], I had lived here . . . two and a half years. Without a problem.
When the study was published, Ned Beecher, director of the Northeast Biosolids & Residuals Association (NEBRA), requested that the National Institute of Environmental Health Sciences (NIEHS), which funded the study, investigate Prof. Wing for research fraud.4 Beecher and others discussed their efforts to Wing and his research in an “ABBA Quarterly Conference Call,” which Beecher facilitates for EPA, Synagro and others who promote biosolids and discredit scientists and local residents who report adverse health effects of treated sewage sludges.5
NBMA is now not sure if they want to keep bringing attention to the report or just let it go. The funding supporting this research may not be available anymore . . . Steve Wing is 58 and is not a tenured professor at Chapel Hill. . . . There will not be much more happening with this other than in Chapel Hill. Not sure if we are going to take it to another level. Enough may have been done.
Prof. Wing initially participated in efforts by the Water Environment Research Foundation (WERF) to investigate reports of adverse health effects linked to biosolids. He later dissociated with WERF and published an article about the organization’s conflicts of interests and strings attached to its funding.6 ABBA is a leading manufacturer of industrial pumps used by wastewater treatment facilities. Twenty-four individuals participated in the conference call, representing Synagro Technologies, Inc., the Water Environment Federation (WEF), National Biosolids Partnership (NBP), and others. The NBP is operated by the WEF in collaboration with the National Association of Clean Water Agencies (NACWA) and local and regional biosolids management organizations across the United States and Canada with support from the US Environmental Protection Agency. 7
Beecher and his organization, which are funded by EPA and Synagro Technologies, Inc., are the same group that published Synagro’s false allegations of research fraud against me and my coauthors in 2001, then again in 2012 when I published an article about institutional research misconduct associated with EPA’s biosolids program.8
In 2003, when our study highlighting environmental justice concerns over EPA’s biosolids program was published, the University of Georgia engineering department prepared a press release to go with it. In the package, I included information about an impoverished African American community that I investigated in Grand Bay, Alabama.9 Whenever the fields were treated with biosolids, children there who drank water from wells in or near the fields experienced severe gastrointestinal problems, and experienced painful cramps in their legs that prevented them from walking to school for weeks at a time. They also had severe respiratory problems from inhaling dust blowing from the treated fields, which spread out in all directions from their homes and reached as far as the eye could see. Their parents and grandparents stayed cooped up in their houses with no air conditioning during oppressively hot summers, and breathed through rags to filter the dust.
UGA, however, quashed the press release. Its Scientific Integrity Officer, Dr. Regina Smith, later testified:10
I read the article, and I read the press release, and [UGA VP for Research] Gordhan Patel and I talked, I think, and my conclusions were just because you publish an article in some little-known journal is no reason to put out a press release. You do press releases when you’re publishing in important journals, like Nature, Science, and Cell. Not in something called Environmental Health Perspectives.
As mentioned in the previous chapter, UGA issued a national press release on an EPA-funded project published in the Journal of Environmental Quality earlier that year, which concluded that biosolids implicated in killing dairy cattle on two Georgia farms did not pose a risk to animal health. Lead author Julia Gaskin, a land-application specialist with a bachelor’s degree in psychology and a master’s in forest hydrology, was quoted in the press release: “Some individuals have questioned whether the 503 regulations are protective of the public and the environment. This study puts some of those fears to rest.”11 Regina Smith testified that this press release, titled “Sludge study relieves environmental fears,” was not brought to her attention.
As I did with the African American community in Grand Bay, I investigated a similar case in Convent, Louisiana, where EPA and state public health officials dismissed health problems reported by 185 residents in a predominately African American community. There, residents began complaining of burning skin, boils, and rashes when the City of Kenner spread its biosolids in fields of sugar cane from 2000 through 2004. Health officials identified S. aureus as causing skin and eye infections, but ruled out biosolids as playing any role. Instead, they blamed poor personal hygiene and addressed the complaints by holding a “health fair” to instruct residents in proper bathing and cleanliness. EPA and state health officials did not assess the personal hygiene habits of affected versus unaffected residents, and did not acknowledge any of our peer-reviewed research, which linked numerous cases of S. aureus infections to chemical irritation caused by biosolids.12
EPA Response: Biosolids Prevents Lead Poisoning
What is the relationship between environmental justice and childhood lead poisoning?
Environmental justice says that no group of people should bear an uneven burden of harmful environmental results. Environmental injustice occurs when environmental effects have a harsh impact on minority and/or poor populations that is greater than the harsh impact on the general population. . . .
Progress has been made in reducing children’s blood-lead levels in the United States. However, average blood-lead levels remain unequally high among non-Hispanic Black children when compared to Mexican-American and non-Hispanic White children. This is an example of a disproportionate disparity. Risk factors for higher lead levels include older housing, poverty, and being non-Hispanic Black. Many children with high blood lead levels are also unequally affected by other environmental issues in their communities.
CDC National Center for Environmental Health
In 2000, scientists at the USDA and Johns Hopkins’ Kennedy Krieger Institute (KKI) applied biosolids containing lead and other hazardous wastes to an African American neighborhood in Baltimore, Maryland. The purpose of the experiment was to see whether biosolids containing high levels of both iron and phosphorus would render potentially dangerous levels of lead in the contaminated soil non-bioavailable, that is, incapable of being absorbed by the digestive tract in children who consumed the biosolids and soil. Small children often directly ingest lead-contaminated soils when playing in their yards, and when the contaminated soils are tracked into their homes. They also inhale dusts, and pick up dusts from handling contaminated surfaces.
The Baltimore study, which was funded by EPA, USDA, and the Department of Housing and Urban Development (HUD), was published in The Science of The Total Environment in 2005.13 It was headed by Dr. Mark Farfel at KKI and Dr. Rufus Chaney.
In 2001 EPA and the USDA also experimented in a poor, black neighborhood in East St. Louis, Illinois.14 Based on these and other studies with humans and animals, they concluded that tilling “Class A” biosolids into lead-contaminated soils in inner-city neighborhoods is advisable to reduce the risks of lead poisoning. Class A refers to sewage sludges treated with low levels of lime, heat, or chemical processes capable of reducing indicator pathogens to undetectable levels. But the indicator pathogens recommended by EPA, for example, Salmonella, are highly sensitive to heat and chemical disinfection. Most viruses and bacteria found in sewage sludges can survive these processes.15
I was questioned about Chaney’s lead containment theory in court proceedings held by the US Department of Labor in 2003.16 Prior to my testimony, Dr. John Walker, EPA’s national spokesperson for biosolids, testified that Chaney’s theory is supported by a number of studies funded by EPA and the USDA. As mentioned in the previous chapter, most research scientists in EPA’s Office of Research & Development (ORD) considered the theory that biosolids render lead and other pollutants non-bioavailable to be bogus, and commonly referred to it as “sludge magic.”
DIRECT EXAMINATION BY MR. KOHN:17
Q. Dr. Lewis, do you remember testimony from Dr. Walker regarding whether Class A sludge, if children ate it, it may help them in terms of lead poisoning?
A. I do.
Q. And do you understand the science behind ingesting Class A sludge and its relationship to heavy metals like lead?
A. I would say I understand the science. I understand the theory. There’s no science that supports that in my opinion.
Q. And is Dr. Walker’s position on that accurate from a scientific perspective?
A. No, it is not.
Q. Can you explain why not?
A. That issue goes back to the genesis of what became known within the Office of Research and Development as “sludge magic.” Basically that the theory is that heavy metals such as lead become tied up or bound with the organic fraction that is in sewage sludge so that they’re not available to be taken up by humans or animals or plants. They are perpetually and forever bound. . . . First of all, the human stomach, which has hydrochloric acid in it, has an extremely low pH, which would [dissolve the] heavy metal. . . .
JUDGE TURECK: I’m very glad to hear you say that it has no scientific basis because the thought of mothers of America going around feeding their children sludge is not a pretty one.
In 2007, I decided to share some of my documents on the Baltimore study with John Heilprin, an environmental reporter working for the Associated Press in Washington, DC. After working with me for about a year, he and Kevin Vineys put together a five-part series on biosolids, beginning with the lead experiments in Baltimore.18 An expert on biosolids at Cornell University, Dr. Murray McBride, commented:
In a newsletter, the EPA-funded Community Environmental Resource Program assured local residents it was all safe. “Though the lot will be closed off to the public, if people—particularly children—get some of the lead contaminated dirt in their mouths, the lead will just pass through their bodies and not be absorbed,” the newsletter said. “Without this iron-phosphorus mix, lead poisoning would occur.”
Soil chemist Murray McBride, director of the Cornell Waste Management Institute, said he doesn’t doubt that sludge can bind lead in soil. But when eaten, “It’s not at all clear that the sludge binding the lead will be preserved in the acidity of the stomach,” he said. “Actually thinking about a child ingesting this, there’s a very good chance that it’s not safe.”
EPA and USDA apparently had no qualms about testing biosolids containing hazardous wastes on humans. I’ve seen records documenting experiments funded by the USDA in which prisoners were fed capsules of biosolids added to soil from a superfund site. In a deposition conducted by one of my attorneys, Ed Hallman, Rufus Chaney discussed human trials that the USDA carried out at Columbia University, but denied that the human subjects were prisoners:19
DEPOSITION OF DR. RUFUS CHANEY BY MR. HALLMAN:
A. You know we even did a human feeding test to show that we could treat soil with phosphate and reduce the bioavailability.
Q. Is that something about pills given to prisoners or something?
A. No.
Q. Where did you feed people?
A. At Columbia University a test was conducted with all the proper approvals, feeding soils from the Joplin, Missouri, experiment using biosolids compost, phosphate, and other soil amendments to attempt to reduce the bioavailability of lead in a smeltered polluted soil.
Heilprin told me that, as soon as the Baltimore story ran, Johns Hopkins University pressured AP to back off.20 AP, therefore, never published the rest of the series. Rufus Chaney emailed Julia Gaskin and Dean Jay Scott Angle at the University of Georgia, Chaney’s former collaborator at the University of Maryland, claiming that AP punished Heilprin for misstating the facts, and planned to publish a retraction.21 One of my attorneys, Ed Hallman, however, emailed AP senior managing editor Mike Silverman, who denied Chaney’s claims.22 In his deposition, Chaney explained what transpired between Johns Hopkins University and AP.23 At first, he stuck by his story that Heilprin was disciplined by AP. Then, after being confronted with Silverman’s email to Mr. Hallman, Chaney denied saying that Heilprin was disciplined:24
DEPOSITION OF DR. RUFUS CHANEY BY MR. HALLMAN:
Q. And how do you know—who is the reporter, is it John Heilprin?
A. That’s the one.
Q. How do you know he was disciplined?
A. Because I was contacted by the AP reporter who wrote the subsequent article and by an AP manager to discuss the case.
Q. And they told you that he had been disciplined?
A. What do you think happens when you’re assigned—when your assignment is shifted? Mr. Heilprin had moved from the United Nations to this wonderful new opportunity of environmental reporting for AP. He was re-assigned and they apologized for his mistaken articles. Now you tell me if that’s not being disciplined. . . .
Q. When you were complaining about Mr. Heilprin, did you talk directly to the AP folks?
A. I was called by the AP manager and the AP reporter who did the follow-up article.
Q. And did you do any—did you have any conversation with anyone at Johns Hopkins about the article?
A. I had several conversations with managers at Johns Hopkins about their response to the Heilprin articles.
Q. And who were they?
A. I don’t recollect names. They were officials of the research corporation and the university.
Q. And did they complain to AP, too?
A. It was their complaint to AP that led to AP actually doing something. . . .
Q. I’ll ask you to look at Exhibit 239 and ask you if you’ve ever seen this document before? Have you ever seen this before?
A. I haven’t seen Hallman’s, no. . . .
Q. And this document says: Dear Mr. Hallman: I am writing in response to a request for information sent to John Heilprin by Kathryn Sims in your name. This e-mail will confirm that Associated Press reporter John Heilprin was neither punished nor disciplined in any way for his stories examining the safety issues involved in the use of sewage sludge. Please confirm receipt.
I believe you say that you got something in writing stating that he was disciplined; is that correct?
A. I didn’t say what you just said I said.
Q. You didn’t say in writing?
A. I said that he was re-assigned, is no longer the lead environmental beat reporter for AP, and they subsequently published what everybody else interprets as a retraction of most of the claims of the Heilprin article at least about Baltimore.
Although Heilprin told me that AP backtracked on the Baltimore story and shelved the rest of his series because of pressure from Johns Hopkins’ lawyers, Chaney had the details concerning Heilprin’s situation at AP backwards. Just as the first installment of his biosolids series went to press, AP offered Heilprin a plum position as a UN correspondent. In his new job, he covered the news worldwide. That same year, the United Nations Correspondent Association awarded him the 2008 Elizabeth Neuffer Memorial Prize, a gold medal, for “his coverage of Myanmar and adroit use of his trip with the Secretary Media General to get in.”25
A couple of months after the Baltimore story ran, the Office of Civil Rights for the Attorney General in Baltimore asked me to review the USDA study.26 It reported that tilling the soil raised the minimum soil lead concentration from 479 ppm to 800 ppm, and adding composted sewage sludge further increased the lead levels. The resulting lead levels were high enough to cause critical brain tissue atrophy in areas of the brain controlling executive functions, mood regulation, and decision making, and may contribute to criminal behavior.27 EPA’s Final Rule 66, which governs concentrations of lead permitted in children’s playgrounds, sets the maximum safe level at 400 parts per million (ppm) of lead for bare soil in play areas.28
By EPA’s own standards, therefore, tilling the soil and adding lead-contaminated biosolids could have potentially increased the risks of lead poisoning in children to dangerous levels. Even though UDSA believes that the biosolids made the lead unavailable, the fact remains that Chaney and his collaborators at Johns Hopkins and elsewhere chose to experiment with African American children, who were placed at risk of brain damage if the experiments failed.29
In a study assessing the lead abatement benefits of landscape coverings, researchers in the Department of Pediatrics at Northwestern University in Chicago found that grass coverage of bare soil areas cut the amount of track-in of lead-contaminated dusts in half.30 Citing an EPA risk assessment, the authors concluded: 31
Lowering the track-in of lead may be the most important influence for the youngest children, whose main pathway for blood lead elevation is lead-contaminated floor dust adhering to a hand, which is then placed in the mouth.
In other words, when the Baltimore study was done, EPA was aware that the main pathway for elevating blood lead levels was via contaminated soil dusts tracked in and deposited on floors where small children crawling on hands and knees would transfer the dust to their mouths. Despite knowing this, EPA funded Farfel and coworkers to till the contaminated soil, raising both soil lead concentrations and dust levels. Farfel and coworkers collected dust samples but, unlike researchers at Northwestern University, they only reported the relative “bioavailability” of the lead in the contaminated dusts. They did not report the total amounts of lead-contaminated dusts that accumulated in main entryways or on doorway mats provided to the study participants in Baltimore.
Moreover, the authors’ conclusions about bioavailability were based on the assumption that bioavailable forms of lead were transformed to a mineral called pyromorphite, which renders them essentially permanently non-bioavailable. Yet, they never analyzed any of the soil samples in Baltimore to see whether pyromorphite was even present. Worse yet, in a previous study on pyromorphite authored by Rufus Chaney and others, they wrote:32
[We] will only be able to quantify and predict these observed changes in lead bioavailability when the mechanisms that affect lead solubility and absorption by the receptors are understood. . . . Moreover, without an understanding of the reasons for variations, a change in measured lead bioavailability is of limited value.
Farfel and coworkers, simply put, had no way of knowing whether contaminated soils in the Baltimore study would be rendered safer by virtue of lead being transformed to pyromorphite. Lead bioavailability in the neighborhoods treated in Baltimore, of course, could be reexamined today to determine whether the effects that Farfel and coworkers reported have lasted as they claimed they would.
Note: Native American residents living on reservations are treated similarly to African American communities. See Appendix IV.
UGA and Republicans Torpedo Senate Hearings
The day after AP published the Baltimore story, Heilprin and Vineys ran a breaking story on Senate hearings.33 The article began:
The Senate Environment and Public Works Committee will investigate the government’s funding of research in poor, black neighborhoods on whether sewage sludge might combat lead poisoning in children, its chairman said Monday.
The Associated Press reported Sunday that the mix of human and industrial wastes from sewage treatment plants was spread on the lawns of nine low-income families in Baltimore and a vacant lot next to an elementary school in East St. Louis, Ill., to test whether lead in the soil from chipped paint and car exhausts would bind to it.
Chairman Barbara Boxer invited Andy McElmurray, one of the dairy farmers affected by Augusta’s biosolids, and me to testify.34 A staff member working for Senator James Inhofe, the ranking minority member on Boxer’s committee, also contacted me about testifying. Andy and I accepted Boxer’s invitation, and met with her staff. Republicans protested the hearing. It was eventually downgraded to a briefing, which both EPA and Republican members of the committee vowed to boycott.
Mr. Hallman represented me and the dairy farmers in two qui tam lawsuits involving Augusta’s biosolids. Qui tam lawsuits allow private citizens who uncover fraud against the US government to sue on behalf of the government under the False Claims Act. The US Treasury keeps all but a small portion of the funds, which goes to the plaintiffs, called relators. We filed our first qui tam lawsuit against the City of Augusta, Georgia, for false claims it made when borrowing tens of millions of dollars from a government program established under the Clean Water Act to help wastewater treatment plants maintain their facilities.
After the dairy farmers filed their first lawsuits against Augusta in 1998, the Georgia Environmental Protection Division (EPD) investigated the city’s waste treatment plant. EPD found it was “in shambles,” and recommended that its land-application program be shut down immediately.35 The inspectors confirmed what experts hired by the dairy farmers had already proven, namely, that Augusta’s environmental monitoring data reported to EPA were completely unreliable. In the process, another audit revealed that Augusta had used the government funds it borrowed to repair its wastewater treatment plant to build a river boardwalk to attract tourists to the city. Unfortunately, neither EPA nor the EPD were interested in getting the US Department of Justice to prosecute the city and recover any of the funds. So, the dairy farmers and I filed a qui tam lawsuit against Augusta based on the fact that we were an original and independent source of information proving that the City of Augusta knew that the information it included in its grant applications was false.
My investigations documented human illnesses linked to Augusta’s biosolids, and some of the environmental samples I collected indicated that Augusta’s biosolids were saturated with toxic chemicals. For example, a county worker contacted me after developing severe respiratory problems from spreading hay treated with Augusta’s biosolids.36 One of his coworkers was even rushed to the emergency room with difficulty breathing after spreading a few bales of the hay. Jennifer Lee, who was reporting on the story for the New York Times, accompanied me late one night when one of the road workers showed me some bales of hay stacked for workers to spread the next day.37 She went over to look at them while I was still gathering some equipment, and came back saying that they had a horrible smell that made her feel light-headed. I could smell it too, even before getting close enough to handle it. It had an overwhelming odor of pyridine, a chemical solvent used to manufacture agrochemicals and pharmaceuticals.
The results of independent investigations were consistent with what EPD knew, but was unwilling to act upon. Records, which the dairy farmers and I obtained under the Georgia Open Records Act, showed that Augusta’s wastewater treatment plant had a long history of failing to enforce pretreatment regulations. Under the Clean Water Act, pretreatment regulations are designed to reduce the toxicity of chemical wastes before they are discharged into sewer systems. But the EPD found that Augusta was allowing Coca-Cola to discharge “off-spec” material directly into the sewer system without dilution or any pretreatment. NutraSweet was also discharging hazardous chemical wastes into the sewer system without recording the amounts. Castleberry Foods Company and Amoco were “chronically non-compliant.” EPD described Castleberry’s pretreatment system as “extremely degraded.” Blackman Uhler, a chemical manufacturer, was discharging methyl chloride into the sewer system in concentrations as high as sixteen times the legal maximum concentrations. It also discharged illegal amounts of phenol and nickel into the sewer system “on a consistent basis.”
We filed the second qui tam lawsuit over a $12,000 grant EPA gave the University of Georgia in 1999.38 The defendants in our lawsuit were EPA employees, including Dr. John Walker and others who arranged the grant, and UGA employees, including Julia Gaskin and others who administered it. This grant was used by EPA and UGA to publish twenty years of environmental monitoring data obtained from the City of Augusta, Georgia, which were required under the Clean Water Act. The data indicated most regulated heavy metals in Augusta’s sewage sludge dropped to safe levels when EPA passed the 503 sludge rule in 1993.
A federal court in a different lawsuit filed by Andy McElmurray ruled that all of these data were fabricated by the City of Augusta to cover up cattle deaths caused by the city’s sewage sludge. Furthermore, based on the kind of information I described above in our first qui tam case, the court ruled that Augusta’s environmental monitoring data were unreliable. And the court made it clear that the reason it was common knowledge is because experts hired by the McElmurray and Boyce families determined that heavy metals and other hazardous wastes were present in Augusta’s sludge at much higher concentrations than the city was reporting to the State of Georgia. In handwritten notes in the margin of the paper Julia Gaskin submitted for publication, one of her coauthors, Bill Miller, scribbled the following note next to conclusions based on Augusta’s data: “We should fess up here that we don’t know exact rates of application or specific characteristics of the sludges applied.”39
In our second qui tam lawsuit, therefore, we alleged that the defendants included various false statements in their grant application concerning the purpose of the grant and the quality of data that would be produced. Our evidence proved that its purpose, from the beginning, was to protect EPA’s regulations and policies on biosolids. As stated earlier, Gaskin herself claimed in a national press release issued by the University of Georgia, “Some individuals have questioned whether the 503 regulations are protective of the public and the environment. This study puts some of those fears to rest.”40 Under the Federal Grants and Cooperative Agreement Act of 1977, it is illegal to use federal grants to support federal policies and regulations, and all federal grant applications require recipients to affirm that this is not their intent. Because the National Academy of Sciences used the Gaskin paper to dismiss the cattle deaths and conclude that there is no documented evidence that EPA’s 503 sludge rule has failed to protect public health and the environment, we believed it was important to file this lawsuit even though the amount of the grant was small.
Before filing a qui tam lawsuit over the Gaskin study, I contacted UGA’s legal counsel, Arthur Leed, and offered to drop the matter if Gaskin would withdraw the paper because some of the data were fabricated.41 UGA refused.42 I also had my attorney, Ed Hallman, send Gaskin and her coauthors documents proving that Augusta fabricated the data they had published, and asked them to withdraw the paper. Gaskin discussed the letter with UGA’s scientific integrity officer, Dr. Regina Smith, who informed provost Arnett Mace, and the VP for research, Gordhan Patel, that Gaskin had no knowledge that the data were fabricated when the paper was submitted.43 Gaskin, in turn, informed Mr. Hallman that UGA had cleared her of any wrongdoing, and claimed that there was no mechanism for withdrawing the paper.44
After agreeing to testify, I decided to inform UGA about the hearings and offer the university one last opportunity to withdraw the paper. In turn, we would drop the lawsuit. Of course, to do this, Hallman’s law firm, the dairy farmers, and I would have to absorb all of his costs associated with our lawsuit, which were considerable. We would also have to forget ever being compensated for any damages EPA and UGA caused by using Augusta’s fake data to discredit the dairy farmers’ legal claims and my research. Otherwise, it would look like we were trying to use the Senate hearing to basically bribe UGA to settle the case. By that time, EPA and Senator Inhofe had informed Boxer that they would boycott the hearing. So Boxer downgraded it to just a briefing.
After I informed our attorneys, Mr. Hallman emailed me a confidential settlement proposal. He too was willing to forfeit everything his law firm had invested in the case if Gaskin would withdraw the paper. But he couldn’t stand the thought of the dairy farmers and me walking away empty-handed. He included $100,000 for each of the dairy farmers and a temporary job for me. I drove over to Atlanta and expressed my concerns about how the letter sounded, but let it go. I should have done more to stop it.
UGA released the settlement offer to the Georgia Attorney General’s Office, and UGA and/or the attorney general released it to the public media. Boxer’s chief of staff called me and Andy in our hotel rooms the night before the briefing to let us know that the hearing had been canceled. AP quoted a spokeswoman for the committee, saying that the hearing was canceled “out of concern that the private litigation would distract from the main issue of sludge safety.” 45 The AP article quoted Hallman’s letter, stating, “The pair (Lewis and McElmurray) warned that they would be testifying at the hearing and said a settlement would allow them to ‘praise UGA for its handling of this matter.’” The Court Record explains what happened: 46
[Plaintiff (“Relator”) David Lewis] met with William Boyce, Andy McElmurray and Ed Hallman on or about August 14, 2008, to discuss Relator Lewis’ interest in settling the qui tam lawsuit. Several days prior, Relator Lewis telephoned Mr. Hallman and the dairy farmers to inform them of his desire to settle the case before testifying at a Briefing before the US Senate Environment Public Works Committee. Mr. Hallman suggested that the Relators meet with Mr. Hallman at Mr. Boyce’s home in Keysville to discuss the matter.
As the Relators sat down, Mr. Boyce put his hand on one of the chairs in his living room and said: “Dr. David, this is the chair Ms. Gaskin was sitting in when she told me that my land was too contaminated for growing food-chain crops.” Relator Lewis states that he looked at the pictures on the wall of the Boyces’ two teenaged boys standing next to their dairy cows with blue ribbons. He stared at the picture of their son who was killed early one morning in an automobile accident as he drove to check on his dying cow. . . .
Relator Lewis said that he fought back tears as he contemplated what he was about to ask Mr. Boyce to do. The Relators talked about all that they had lost as a result of the Defendants promoting sewage sludge and attempting to quash any questioning of the EPA’s biosolids program. Two of Georgia’s most productive dairy farms were destroyed, along with a way of life for the McElmurray and Boyce families. Dr. Lewis’ career as a scientist was gone. They spoke of the millions of dollars in resources that their attorneys have invested in prosecuting their cases over the past 15 years.
Relator Lewis, however, explained that the qui tam lawsuit was about the Defendants lying on grant applications and fabricating scientific data to defraud the United States Government. He urged Mr. Boyce and Mr. McElmurray to make a onetime offer to the University of Georgia Defendants that they simply agree with Judge Alaimo’s ruling concerning the fabricated data that the EPA Defendants provided to UGA. Dr. Lewis suggested that Relators Boyce and McElmurray give the UGA Defendants the benefit of the doubt and not ask for a monetary settlement. Both agreed to do so.
Purely for the public good, therefore, the Relators were willing to set aside all that they had lost. They were willing to let Ms. Gaskin and the other UGA Defendants settle with their careers and reputations intact and have all of the things that the Relators could never regain for themselves. Moreover, Relator Lewis [stated] that although Mr. Hallman could not bring himself to propose a settlement in which his clients would receive no money, he asked for no attorneys’ fees or expenses for himself or any of his associates.
According to Dr. Lewis, the Relators were hopeful that the University of Georgia would seize this opportunity to correct the scientific record for the public good and not engage in any protracted and costly litigation. They thought that UGA would probably agree to Ms. Gaskin submitting an erratum to correct the scientific record if the Relators would agree to no monetary payments. Dr. Lewis states that the Relators would have accepted such terms, obviously, because they had already agreed among themselves to do just that.
I was also questioned by UGA’s attorneys about the settlement offer during depositions:47
UGA ATTORNEY QUESTIONS LEWIS (2009)
Q. Okay. Do you recall the September 3rd settlement offer?
A. In this case?
Q. Yes.
A. Yes.
Q. All right. Do you remember suggesting that you would praise one or more of the defendants if some statement were signed?
A. I remember that language in Mr. Hallman’s letter.
Q. What did you mean by praise?
A. It wasn’t my letter. I don’t know what he meant.
The statements that Andy McElmurray and I prepared for the Senate briefing appear in Appendices V and VI.