Dioxin Developments

December 20, 2016 | Complex Torts & Product Liability

State of Washington Is First State to Sue Monsanto Over PCB Damages and Cleanup Costs

The state of Washington has filed the first environmental lawsuit by a state against Monsanto Company seeking damages and cleanup costs associated with the polychlorinated biphenyls (“PCBs”) produced by the company.

The Allegations

The complaint, filed in a Washington state court, contends that Monsanto was the only U.S. company to produce PCBs from 1935 to 1979. The Toxic Substances Control Act, which was enacted in 1976, banned their manufacture. The complaint asserts that Monsanto “knew these compounds were toxic to humans and wildlife and had spread throughout the ecosystem long before the ban took effect.”

PCBs present a public nuisance “that is harmful to health and obstructs the free use of public resources and state waters” due to Monsanto’s negligence and its efforts to conceal the dangers of its product, the lawsuit alleges.

According to the state’s complaint, PCBs have been found in bays, rivers, streams, sediment, soil, and air throughout the state, with more than 600 suspected or confirmed contamination sites. As asserted in the complaint, currently, there are 13 active fish consumption advisories related to PCBs, covering among other things several stretches of the Columbia River, all 26,000 acres of Lake Washington, and 21 miles of the Wenatchee River.

The lawsuit – against Monsanto and Solutia Inc. and Pharmacia LLC – seeks compensation for damages to the state’s natural resources, including the economic impact to the state and its residents. It also asks the court to award present and future costs to address the “ongoing public nuisance” caused by PCBs.

The state claims that damages could reach into the hundreds of millions of dollars or more.

The complaint asserts that, as early as 1937, internal Monsanto documents warned of “systemic toxic effects” from prolonged exposure to PCB vapors. As alleged, by the late 1960s, Monsanto privately cited evidence of global PCB contamination but kept that information from the public. The company chose to conceal the toxicity and pervasive contamination of its chemicals in favor of profits, the complaint alleges.

The complaint asserts that a 1969 internal report produced by an ad hoc Monsanto committee on PCBs said, “There is no practical course of action that can so effectively police the uses of these products as to prevent environmental contamination” but that, “[t]here are, however a number of actions which must be undertaken to prolong the manufacture, sale and use of these particular [products].”

The complaint also contends that another internal report said, “[T]here is too much customer/market need and selfishly too much Monsanto profit to go out” to cease PCB production, despite the dangers. Monsanto continued to produce PCBs for another 10 years after articulating that conclusion, the state asserts.

Attorneys in private practice will shoulder the costs of the case, receiving reimbursement only after a successful result, according to the attorney general. They will receive a portion of damages to be awarded to the state in the event of a favorable outcome.

Monsanto’s Statement

Monsanto said in a statement that the “case is experimental because it seeks to target a product manufacturer for selling a lawful and useful chemical four to eight decades ago that was applied by the U.S. government, Washington State, local cities, and industries into many products to make them safer. PCBs have not been produced in the U.S. for four decades, and Washington is now pursuing a case on a contingency fee basis that departs from settled law both in Washington and across the country. Most of the prior cases filed by the same contingency fee lawyers have been dismissed, and Monsanto believes this case similarly lacks merit.”

Officials’ Comments

In statements, the state’s attorney general and governor commented on the lawsuit.          

“Monsanto knew the dangers of PCBs yet hid them from the public to generate profits,” Washington Attorney General Robert W. Ferguson said. “I will hold Monsanto accountable for its actions.”

“Monsanto is responsible for producing a chemical that is so widespread in our environment that it appears virtually everywhere we look – in our waterways, in people and in fish – at levels that can impact our health,” Governor Jay Inslee said. “It’s time to hold them accountable for doing their fair share as we clean up hundreds of contaminated sites and waterways around the state.”

Other Actions

Seattle and Spokane have pending lawsuits against Monsanto over the costs associated with PCB contamination in water treatment, joining Portland and several California cities. The state’s claims are separate from the cities’ actions. The state said that its lawsuit does not impede Seattle’s and Spokane’s ability to recover the damages sought in their court actions.

For further information, please contact James V. Aiosa, Paul V. Majkowski, Lawrence S. Han, or your regular Rivkin Radler attorney.

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