"Sara Lee was doing testing of the environment in the plant for cold-loving bacteria," says Caroline Smith DeWaal of the Center for Science in the Public Interest. "Then their tests started coming up positive, so they stopped testing. They knew they had a problem with bacteria in the plant. But instead of solving it, they chose to ignore it." This is crucial, because if the company knew that it had a Listeria monocytogenes problem and ignored it, it could be hit with a felony conviction. And felony convictions have all kinds of collateral consequences, including possible loss of federal contracts — Sara Lee had a big hotdog contract with the Department of Defense.
In an interview, U.S. Attorney Phillip Green said there was insufficient evidence to bring a felony charge. "There was simply no evidence that Sara Lee Bil Mar knew that the food product that they were producing and shipping out was adulterated with Listeria monocytogenes," Green says.
When asked about the allegations raised by the Free Press that the company was testing for cold-loving bacteria, Green told us, the test does not necessarily indicate the presence of Listeria monocytogenes. "The USDA regulations don't require a plant to conduct testing on finished products for the presence of deadly pathogens such as Listeria monocytogenes," Green said. "And Bil Mar was following accepted industry practices in conducting general testing for the low temperature pathogens."
But Green refused to answer specific questions about evidence concerning a possible felony violation.
Moll — the attorney representing the victims — says that the evidence "does necessarily indicate the presence of Listeria monocytogenes." The CDC's Mead found studies showing that, had Sara Lee done further testing for the deadly strain of the Listeria, almost half of the cold-loving bacteria could have tested positive for Listeria monocytogenes.
But U.S. Attorney Green never read Mead's report. He never called on Mead, perhaps the crucial expert in this case, to testify before the grand jury. In fact, it is apparent that federal prosecutors were overpowered by Sara Lee's outside lawyers in this case — the Chicago firm of Jenner & Block, led by former Chicago U.S. Attorney Anton Valukas. Valukas refused, on advice of his client, to comment.
But the extraordinary degree of the collaboration between Sara Lee and the federal prosecutors in this case can be seen on Sara Lee's Web site where it has posted a "joint press release" announcing the plea agreement in which no mention is made of Ball Park Franks hotdogs. The issuance of a joint press release is an extraordinary event. U.S. Attorney Green can't name another case where the prosecutor and convicted issued a joint press release announcing their plea agreement. Neither can the current chief of the Criminal Division at the Department of Justice, Michael Chertoff. He calls it "unusual."
9. Dirty Money, Dirty Air
One of the dumber provisions in U.S. environmental law is the "grandfather clause" in the Clean Air Act. This provision exempts power plants built before 1970 from Clean Air Act standards. At the time of adoption, it was viewed simply as a transition mechanism, with utilities arguing that old, grandfathered plants would rapidly be replaced. That hasn't happened.
Instead, utilities like Southern Company — the largest in the United States — continue to rely on grandfathered facilities, especially dirty coal plants, to generate substantial portions of their electricity. According to the U.S. Public Interest Research Group (PIRG), grandfathered plants represent approximately 40 percent of Southern's generating capacity.
Southern was the most polluting utility in the United States in 1999, according to U.S. PIRG, emitting more sulfur dioxide, more nitrogen oxides and more carbon dioxide than any other power company. Sulfur dioxide and nitrogen oxides cause or exacerbate an array of respiratory ailments such as asthma and are associated with tens of thousands of deaths in the United States annually, and are the principle components of acid rain. Carbon dioxide is the most significant greenhouse gas.
According to U.S. PIRG, Southern emits sulfur dioxide at a rate nearly 50 percent higher than the national average for utilities, and more than 400 percent higher than it would with new facilities. The company itself reports that it has the seventh highest sulfur dioxide emission rate in the country.