Editor’s Note: This is the seventh installment in a series written by John Munsell of Miles City, MT, who explains how the small meat plant his family owned for 59 years ran afoul of USDA’s meat inspection program. The events he writes about began a decade ago, but remain relevant today.
Back in full swing again, authorized to grind under the Mark of Inspection, I questioned the wisdom of my going public, which would fully reveal the multitude of agency misdeeds.
Although my eldest grandchild was but four at the time, I found myself imagining conversations with her on this issue. I defended the position of NOT going public and, in my mind, she argued in favor of my going public. I kept stating (in my mind) “Hannah, I can’t afford to have the agency mad at me; they will use retaliatory tactics.” She would reply, “Grampa, what’s right is right. What’s more important: your comfort level with FSIS, or my health?”
This imaginary argument went on for several days, and Hannah always won the argument. The turning point was when Hannah stated (in my mind) “Grampa, they’re gonna shut you down anyway, it’s just a matter of time. So what do you have to lose?”
Bingo, the light went on! Without Hannah actually saying a word to me, she caused me to do an about face. There’s just something about grandkids.
I knew then that if I remained quiet, and more outbreaks occurred, and innocent children continued to die, I’d have a difficult time ever looking Hannah in the eye. I realized I’d rather lose my business and have my granddaughter’s respect and trust, than remain silent and become a secret accomplice with FSIS.
On Thursday morning, July 18, 2002, I started calling around, speaking to anyone I could find in the media, to tell my story. I knew it would be a hard sell, because who in their right mind would ever believe that FSIS adroitly avoids tracebacks to the source?
The very idea that the agency was not willing to test potentially adulterated meat for E.coli seemed outlandish. Through an unusual set of circumstances, a representative of NBC Nightly News with Tom Brokaw quickly contacted me, somewhat incredulous with my claims.
After a lengthy visit, they asked if I would allow their film crew on my premises, and would I be willing to be interviewed. I agreed, and immediately sent word everywhere that the NBC crew was coming, and to be watching for a future evening news story focused on agency misdeeds at my plant.
The next agency action was very interesting. Since I immediately announced the upcoming NBC revelation, I had the foreboding fear of immediate agency retaliation. Yet, the agency had become suddenly quiet, which was disconcerting. Like the lull before the storm.
On Friday, July 26, 2002, the FSIS Office of Field Operations in D.C. sent an email to all of the District Office Managers. The email referenced “Here is a summary of the procedures that were agreed upon at the conference call earlier this week.” The operative sentence was the following:
“At the time the [ground meat] sample is taken, the IIC will obtain from the establishment, the name, point of contact, and phone number for the establishments supplying the source materials for the lot of ground beef being sampled.”
I was immediately provided a copy of this by Dr. Daryl Burden, the same courageous agency veterinarian who hand-wrote the letter disclosing Est 969 (ConAgra) as the source of the three positives at my plant. Since my recall, I had been unsuccessfully pressing the agency to document all source evidence at the time of sample collection, but with zero success. Is it possible that the agency made this procedural change in advance of the embarrassing NBC revelation? You be the judge.
On Aug. 1, 2002, exactly two weeks after I went public, Tom Brokaw broke the story. The news clip showed the now-infamous letter from Dr. Burden, as well as footage taken at my plant, and an interview with then USDA Under-Secretary Elsa Murano, who stated that agency investigators were sent to ConAgra, but could find no product to test.
Think of it! Indeed, there was no product remaining at ConAgra from the same date that produced the hot meat at my plant for three consecutive days, because it had already been shipped into commerce! The appropriate agency action would have been to “suggest” (aka “demand”) a recall of all coarse ground beef from the one-day of production involved.
The very top management at FSIS concluded that no problem existed because they could find no meat at ConAgra from the one-day of production. The problem was not hot meat at ConAgra, but at multiple locations throughout the country that were performing final grinds on the pathogen-laced meat.
As we know, FSIS closed down my grinder for four months, but ConAgra’s grinder never stopped. What a difference plant size makes!
One unanticipated result of the NBC revelation was the multiple dozens of unsolicited emails, telephone calls, and letters I received from total strangers throughout the country. Some were other plant owners, but many were FSIS employees: inspectors and veterinarians, both currently employed and retired.
These folks related similarly scandalous scenarios implemented by FSIS from coast-to-coast.
My next admission is that I had been totally wrong! During the four months the agency abused me, I wondered why FSIS had targeted my solitary plant for its unethical enforcement actions, thinking my plant had been singled out.
I was quickly informed by total strangers that the agency conducts such witch hunts at small plants across this continent, that my plant was indeed not unique. Now if one or two strangers had called with such evidence, I’d tend to disbelieve their disturbing stories. However, all these folks told the same story, lending credibility to their revelations.
After the July 26 email from FSIS headquarters in Washington D.C. to all DO managers, inspectors commenced documenting evidence that should have been part and parcel of agency HACCP procedures since day one of HACCP, since HACCP is ostensibly based in science.
But, I can see why the agency waited to change this procedure until faced with an embarrassing NBC revelation: how can FSIS employees document unrestricted evidence after the agency promised to utilize a “hands off” non-involvement role, and would no longer police the industry?
Two inspectors subsequently documented this evidence at my plant, and provided me copies, which I still have. When the Minneapolis DO found out such source evidence was being documented at my plant, E. coli hit the fan! The DO angrily demanded to know who created this “rogue form” on which source evidence was being compiled at my plant.
Although FSIS headquarters in Washington, D.C. demanded that such evidence be compiled at the time of sample collection, the Minneapolis DO went ballistic when informed that inspectors were indeed documenting such evidence at my plant. The DO preferred to keep its head in the sand. But the ultimate question here is who is the head of the snake? Someone from the DO, or from D.C.?
A couple months later, I heard rumblings that the Minneapolis DO was discreetly instructing its inspectors to discontinue documenting source evidence at the time of sample collection. The issue took on a “hot potato” quality: no one wanted to discuss it, and evaded any reference to what was happening.
Besides, the inspection force really did not know offi
cial agency policy because t
he agency was not issuing any written statements on this issue, intelligently creating no paper trail. I wanted to know what was happening behind closed doors at the DO.
At a joint FSIS/industry meeting in Great Falls, Montana, on Saturday, Oct. 5, 2002, the manager of the Minneapolis DO took his turn responding to industry questions. I described to him the uncertainty faced by his field force, not knowing if they were to document source evidence at the time of sample collection, or wait until lab results were returned.
His reply, which was made in front of the crowd, and no one in the agency has ever attempted to deny, was as follows:
“For legal reasons, the agency has decided that sample evidence is not to be collected until after lab results have been released.”
The agency did not fear litigation from small plants. In less than two months, the procedural change that benefitted public health had been rescinded. But, we must acknowledge that the NBC Nightly News revelation was now old, dismissed to the archives. The agency was no longer in the media cross hairs, free again to orchestrate intentional obfuscation of the full truth.
I should explain why source documentation in real time benefits public health. Let’s say a plant like mine (which slaughters and processes) is scheduled for the inspector to collect a sample of ground beef for microbial analysis at a USDA lab.
Let’s say my plant ground meat that originated from my own kill floor, and the USDA lab concludes that it is positive for E. coli O157:H7. When the adverse lab result is communicated to the agency inspector, who then notifies me, I could falsely claim that the meat emanated from one of my source slaughter providers.
Since several days have now transpired since the sample was collected, the trail of evidence has turned cold, and the inspector has no way of unilaterally validating the accuracy of my claim as to the source of the sampled meat. Agency-mandated delays in documenting all evidence provide an opportunity for unethical plant operators to intentionally lie about the source of the hot meat.
On the flip side of the coin, when the USDA lab concludes that the sample was contaminated, FSIS assumes the right to accuse the plant of using its own previously contaminated meat, because no records were kept of the true source of the meat at the time of sample collection, even though the meat may have been purchased from an outside supplier.
The agency’s refusal to document all evidence at the time of sample collection creates opportunities for both the agency and the meat plant to make false claims and accusations. It also intentionally obfuscates evidence that would prove where the meat was contaminated.
Then-Montana Senator Conrad Burns had been intimately involved in pressuring the agency to utilize appropriate actions at my firm in 2002. Burns called for a Senate Field Hearing in Billings, Montana on Dec. 11, 2002 to discuss “Food Safety Recall Procedures.”
The panelists included William C. Smith, FSIS Assistant Administrator in the agency’s Office of Field Operations (OFO), two others, and me. OFO has full authority over agency actions in the field, including agency actions against my firm.
During the hearing, I stated that on “the day that a sample is taken, it is my contention that both the inspector and the plant management should work together and fully document all that information.” Senator Burns then asked Bill Smith for his response. Two of Smith’s responses in the transcript were candidly revealing. A recorded on page 39 of the transcript, Smith had this response:
“We’d be collecting an awful lot of information when it would be – we could have inspectors doing more important things.”
More important things than doing what? My answer: documenting the full truth.
On page 40 of the transcript, Smith further explained agency opposition to documenting source evidence at the time of sample collection:
“… because a number of packers would also be very upset about us [FSIS] collecting information on negative findings.”
I suggest to you that collecting evidence of contaminated meat should be the responsibility of FSIS, but the agency disagrees with me. Yes indeed, FSIS is paralyzed with fear of litigation from the big packers if the agency were ever audacious enough to document source evidence about the pathogen levels in meat originating from these big packers.
Now it is easier to understand why the Minneapolis District Office refused to accept my offer of unopened, intact chubs of Coarse Ground Beef for sampling at USDA labs, concerned that “ConAgra would sue us” as previously described. As such, Smith implied that FSIS is more concerned with placating the big packers, than protecting and promoting public health.
A most interesting exchange occurred immediately after the closure of this hearing. My wife Kathryn approached William Smith and stated:
“I just want you to know that what you have done to this man [John Munsell] is absolutely disgraceful. Over and over and over he rewrote his HACCP Plan 14 times, and every time you rejected it.”
William Smith replied:
“We have a small plant outreach center in Washington, DC, and John should have contacted them to help him with his reassessments.”
My wife responded:
“Yes, and he was told not to contact her, because she is married to you.”
A visibly upset Smith angrily demanded:
“I’d like to know who told you THAT!”
Who is “she,” at the small plant outreach center? None other than Mary Cutshall, who just happens to be married to William C. Smith. It is true that at one time I had considered contacting Mary, but an agency employee (who shall remain unnamed) privately confided in me that I should NOT contact Mary because of the obvious conflict of interest, explaining that if I would contact Mary Cutshall for help, she could pass on my comments to her husband.
Senator Burn’s involvement didn’t end there. During a chance meeting at the Minneapolis airport in December 2003 (one year after the hearing), Burns and I discussed the state of agency activities against my plant. Burns stated that he had recently been at a social gathering, where he had visited with Ann Veneman, who at the time was the USDA Secretary. Burns brought up the issue of agency behavior at my plant, to which Secretary Veneman replied:
“We mishandled that from day one.”
It’s a shame that one branch of USDA (FSIS) conducts itself so shamelessly that even the USDA Secretary was cognizant of details. Amazingly, the agency has yet to learn its lesson, as FSIS continues to perpetrate similar misdeeds at small plants nationwide, as revealed to me by dozens of agency employees and other plant owners.
This narrative is not focused on agency misbehavior at my plant, but on systemic agency violations of its public trust and abdication of its congressional mandate to inspect meat and protect public health.
FSIS-style HACCP is all about agency comfort and deregulation of the agency’s closest ally, namely, the big packers. As William Smith testified at the Senate field hearing, a number of packers would be upset if the agency were to collect information on lab results that prove the existence of contaminated meat emanating from the large source slaughter providers.
It is imperative that I state my endorsement of agency field force, both inspectors and veterinarians. These dedicated folks want to do w
hat is right, desiring to document problems in the field, and frequently report sanitation problems to supervisors who are regularly prohibited from initiating meaningful enforcement actions … at the source slaughter plants.
More than one field employee has told me that HACCP has indeed removed command and control from inspectors. They immediately add that command and control has been effectively transferred to and is alive and well at the District Offices and in Washington, D.C.
As such, agency bureaucrats have effectively eviscerated field force of any authority, having transferred all authority to FSIS headquarters. Agency lifer bureaucrats have centralized all decision making into headquarters offices, denying online inspection personnel the authority they need when they observe ongoing fecal sanitation problems.
Admittedly, there is an occasional inspector who misuses authority and victimizes plant management. But overall, the agency’s field inspection force is reputable; nevertheless, it has been demoted to an inferior status by intentional agency design, another fatality from the FSIS-style HACCP Hoax.
Another incident also opened my line of communications with dozens of total strangers, resulting from a lawsuit filed on my behalf by the Government Accountability Project (GAP) against FSIS in October 2004.
The lawsuit had two goals: force FSIS to initiate long-overdue changes in its corrupted HACCP program, and to reimburse my company for financial losses caused by the agency’s misdeeds.
Once the litigation was announced, I again received dozens of unsolicited communications from many total strangers, both from within the industry and from within inspection ranks. Interestingly, they all described the same story of FSIS insulating the source slaughter plants from accountability nationwide, the agency’s prohibition against its own inspection force to take meaningful actions when witnessing ongoing fecal sanitation problems against the source slaughter plants, and targeting small plants with unjustified enforcement actions.
While plant management and inspectors alike swore me to secrecy, they nevertheless educated me on the ubiquitous nature of the agency’s pervasive departure from common sense meat inspection protocol, while dedicating an inordinate amount of time to monitoring paperwork flow.
Another result of my going public was the agency’s perception of the value of its protocol that required 15 additional samples subsequent to the detection of E. coli-contaminated meat at meat plants.
You may recall that this valuable scientific tool had conclusively proven the source of adulterated meat both at my plant, and at Galligan in Denver, Colorado, in the first half of 2002. In fact, the protocol was TOO successful, an embarrassing hot potato for which FSIS wanted to avoid any future recurrences.
So, how did FSIS change or improve this protocol? Answer: the protocol was totally rescinded! FSIS published Notice 11-03 on April 18, 2003, less than one year after ConAgra’s 19.1 million pound recall, and eight months after the NBC revelation. The rescission was quietly published, with no fanfare, in my opinion a furtive attempt to hide this agency misdeed. Part II (A) 6 of Notice 11-03 includes this statement:
“Section VI, E. 2. Of FSIS Directive 10,010.1 is revoked.”
The implications of this are substantial. When adulterated meat is detected, the agency desires to skillfully avoid accumulation of additional microbial evidence that could result in (should mandate) a successful traceback to a large source slaughter provider. In order to insulate the large source slaughter plants, the agency disbanded this 15-sample policy that had caused the agency so much grief in early 2002.
In all fairness, it must be acknowledged that five years later, FSIS reintroduced a subsequent protocol allowing a diminished amount of follow-up sampling. On Oct. 30, 2008, FSIS issued Notice 79-08 entitled “Multiple Follow-Up Sampling After FSIS Positive Escherichia coli (E.coli) 0157:H7 Results.”
According to this notice, inspection program personnel are to collect 8 samples for low volume establishments (establishments that produce less than 1,000 pounds per day of product in question), or 16 for all other establishments. Notice 79-08 expired on Nov. 1, 2009, and its provisions have been incorporated into Directive 10,010.1. The directive allows for additional scheduling of sampling if it is deemed appropriate. FSIS has not defined what plant conditions would be deemed “appropriate” to justify additional sampling.
Since FSIS now allows plants to write their own HACCP plans, FSIS has jettisoned its previous national standards that had previously provided a solid foundation from which to establish plant production protocol.
After all, since FSIS now embraces a “hands off” non-involvement role, and cannot police plants, FSIS claims it cannot establish national standards. However, the agency regularly rejects HACCP Plans because of alleged inadequacies within the plans, without revealing the alleged inadequacy or the solution to the inadequacy. Under HACCP, each plant can author its own standards, providing it has scientific justification for such decisions. A problem this creates is that plants utilize commonly accepted scientific findings in writing their HACCP Plans, but FSIS bureaucrats regularly reject the adequacy of the particular scientific study in one plant, while accepting the study in other similar plants. Let me give you an example.
Prior to HACCP’s advent, FSIS mandated that plants maintain their processing rooms at a 50 degree F temperature or less, to control the growth of bacteria. If temperatures exceeded 50 degrees, then the plant had to perform a mid-shift cleanup within four hours of the temperature exceeding 50 degrees.
Cold temperatures greatly retard pathogen growth. So, when I wrote my HACCP Plan, I unilaterally reduced the temperature of my processing room to 45 degrees as a food safety measure. Some FSIS inspection personnel objected to this change. For several weeks, I played pure hell with these agency folks, who threatened enforcement actions against me for implementing this common sense improvement in my production procedures.
Furthermore, this agency argument against me contradicts the earlier FSIS promise that plants could write their own HACCP Plans, and the agency can’t tell plants what must be in their HACCP Plans.
I’ll explain next how this crazy situation played itself out.
John Munsell now oversees the Foundation for Accountability in Regulatory Enforcement, FARE. His website is www.johnmunsell.com