By John W. Scanlan, J.D.
The Attorney General of the State of Washington has brought suit against Monsanto Co., Solutia, Inc., and Pharmacia Corp.—all descendants of the previous Monsanto Corp.—asking for monetary damages and remediation of contamination of numerous bodies of water and other natural resources within the state allegedly by polychlorinated biphenyls (PCBs) produced by Monsanto (State of Washington v. Monsanto Co., December 8, 2016).
According to the complaint, the original Monsanto knew for many years that PCBs were toxic and contaminated all natural resources and living organisms, bioaccumulating in humans and causing hazards to human health, including cancer and many other health effects. The complaint alleged that Monsanto was aware as early as the 1930s of the toxic effects of PCBs through inhalation in industrial settings, and has known since the 1960s that PCBs were global contaminants that harmed fish and other animals.
Various internal documents showed that Monsanto had formed a committee to continue sales and profits of Aroclor, its trade name for some of its PCB compounds, even though the committee knew there was no was no practical way to prevent environmental contamination, the complaint said. The complaint further asserted that Monsanto had directed its customers to dispose of PCB-containing material in landfills despite its knowledge that incinerators were the only effective method of disposing of PCBs. Despite its knowledge and the knowledge of the scientific community of the hazards of PCBs, Monsanto misrepresented these facts to various governmental entities, including the Los Angeles County Air Pollution Control District, the Regional Water Quality Control Board – San Francisco Bay Region, the National Air Pollution Control Administration, and the New Jersey Department of Conservation, the state said.
The original Monsanto was the sole producer of PCBs in the United States from 1935 to 1979, when their manufacture was banned by the Toxic Substances Control Act (TSCA). In 1997, the company’s chemical division was spun off and renamed Solutia, Inc., which assumed all liabilities related to the original company’s production and sale of PCBs. The remainder of the company subsequently merged with Pharmacia/Upjohn, and several incorporations and mergers later resulted in a Pharmacia Corp. (currently a fully-owned subsidiary of Pfizer, Inc.) and a new entity called Monsanto. Solutia later underwent a bankruptcy reorganization, and as part of its Chapter 11 plan, Solutia, Pharmacia, and Monsanto entered into certain various liability sharing and indemnification agreements. The complaint noted that Monsanto’s most recent Form 10-K stated that the company had established a $545 million reserve for various environmental remediation and legal proceedings.
Specific claims. The state alleged claims for public nuisance, products liability defective design and failure to warn, negligence, equitable indemnity, and statutory trespass. In October, a federal court in the state of Washington allowed products liability and negligence claims in a similar suit brought by the city of Spokane, Washington, to go forward [see Products Liability Law Daily’s October 27, 2016 analysis]. The state asserted that the claims and damages sought in the present complaint do not subsume or incorporate the claims and damages in that suit.
Relief sought. The state asserted that contamination from Monsanto PCBs had resulted in significant costs ("many millions") being incurred by the state to identify and reduce PCB sources, as well in monitoring, investigation, and remediating contamination, and that the state would continue to incur these costs into the future. As a result, it asked for compensatory damages, damages for injury to natural resources, present and future cleanup costs, plus attorneys’ fees and court costs.
Attorneys: Robert W. Ferguson, Office of the Attorney General, for the State of Washington.
Companies: Monsanto Co., Solutia, Inc.; Pharmacia Corp.
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