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Lee refiles Monsanto PCB lawsuit, alleges illegal relationship with GE

Monsanto responds that it did not dispose of PCBs near Lee and was not a party to a remediation agreement.

Lee — After dropping its lawsuit against Monsanto Corporation (Monsanto) and its iterations last year, Select Board Chair Robert “Bob” Jones said the town is “back in the saddle” with its March 13 refiling of a civil action naming Monsanto (the original company’s agricultural spin-off) as well as Solutia (its chemical products spin-off) and Pharmacia (its pharmaceutical spin-off) as defendants.

Town Administrator Christopher Brittain added the document to Lee’s website and the text of that filing can be found here.

In a March 19 news release read by Jones at the Select Board’s March 19 meeting, he stated that the action “is another path toward undoing the injustices perpetrated on the residents of Lee and the Housatonic River Corridor.”

“The abuses of multibillion dollar corporations over decades, the lack of response of our elected representatives, and the ongoing deception in order to keep all of us in the dark must end here,” Jones stated.

The complaint

The litigation was anticipated after Lee officials announced finding documents that showed an illegal relationship between General Electric Company (GE) and Monsanto, referred to by Jones as “the smoking gun.” GE was found to have deposited the now-banned polychlorinated biphenyls (PCBs) into the Housatonic River after it used the chemicals in its manufacture of electrical transformers. That relationship included a 1972 agreement whereby GE consented to indemnify, or not hold Monsanto liable for, any fallout from the sale of its PCBs to GE as its officials knew of the dangers the chemicals posed to humans and the environment.

Represented by Cristobal Bonifaz, the complaint states that, as far back as 1930, Monsanto was aware the PCBs were “forever” chemicals, substances that don’t decompose. It alleges, from 1939 to 1979, when GE discarded more than 1.5 million pounds of the product into the Housatonic River at the end of its use, Monsanto was aware the chemicals wouldn’t be carried by the Housatonic to the Atlantic Ocean, but instead remain embedded within the waterway’s sediment.

When Monsanto discontinued selling the PCBs due to the chemical’s dangerous properties—with those properties and standard of care to be taken with PCBs outlined in a 1970 letter to 661 U.S. customers — Monsanto and GE agreed that latter would be permitted to continue to purchase the product with the proviso that GE reimburse Monsanto for any claims filed against the company, the complaint alleges.

“The actions of Monsanto in not removing the product from the marke[t] when it became a certainty the product will harm humans and the environment and the actions of GE in continuing to profit from the use of the product even [as] it caused harm to humans and the environment was an intentional act that could not be justified in any society,” the complaint states.

The filing identifies the result of PCB toxicity, including causing liver disease, as well as the chemicals being able to be spread by air or water. It states that Monsanto kept its knowledge of those dangerous properties “secret to prevent customers like GE from terminating [its] usage.” As proof, Bonifaz points out that Monsanto kept track of its employees who died of cancer between 1949 and the 1970s because of PCB exposure.

The document alleges that GE dumped into the Housatonic River or buried in landfills more than 1.5 million pounds of PCBs between 1930 and 1979, and Monsanto sold to GE more than 59 million pounds of PCBs between 1972 and 1977.

“It was less expensive to GE to pay damage claims filed by humans and for themselves and their environment than to profit from the sale and use of PCBs,” the filing states.

The complaint points to the universal reliance on PCBs for its electrical products as reason to continue its widespread production, at least until the chemicals were ultimately banned. “Before that time, the termination of sales for dielectric uses would have resulted in severe economic and social dislocation,” the complaint states, quoting a Monsanto statement from a Federal Court case.

Bonifaz offers that GE’s continued use and disposition of PCBs “created a catastrophe to the Town of Lee and its residents for which both GE and Monsanto are responsible.”

“Monsanto never told GE or any other of its 661 plasticizers customers … that dumping PCBs into a River resulted in permanent PCB contamination of the rivers due to the unique properties of PCBs,” the document states.

The complaint cites a 2020 agreement between then-representatives of five towns — Great Barrington, Lee, Lenox, Sheffield, and Stockbridge — as well as GE and the Environmental Protection Agency that mandated those communities would receive a total of $62 million from GE in exchange for not appealing the order’s terms. However, the document states that the agreement doesn’t prevent Lee’s officials from seeking a monetary award from GE and Monsanto for the damages done to the town and its residents, including eliminating their use of the river for years to come, as well as creating an upland disposal facility (UDF), or toxic-waste dump, in their backyard to accept lower-level contaminated sediment while the more toxic materials are sent out of the area as part of the settlement. That remediation agreement has long been opposed by Lee officials and residents as having been negotiated in secret, without giving citizens an opportunity to respond.

The complaint states that a number of lawsuits filed in 2023 provided the internal Monsanto documents on which the action is based, including the GE-Monsanto indemnification contract the town was apprised of on December 15. According to the complaint, Monsanto was recently found liable for environmental damages in Oregon and Pennsylvania, as well as PCB illnesses caused by its processes in Washington State.

Finally, in the action, Bonifaz admonishes Monsanto for not notifying all PCB users of its harmful properties as soon as representatives learned the chemicals could damage the environment and human health.

On behalf of his client, Bonifaz requests a jury trial and an award that would compensate the community for its damages, in addition to punishing the defendants for their actions.

Monsanto responds

In a March 19 email response to The Berkshire Edge’s request for comment, a Monsanto spokesperson stated that the lawsuit “reflects an attempt by the Town of Lee to impose environmental liability on a manufacturer that did not dispose of PCBs in or near the Town and is not a party to a settlement under which the Town agreed to create a PCB disposal site.”

“Indeed, in its complaint against Monsanto, the Town of Lee acknowledges that ‘GE dumped 1.5 million pounds of PCBs into the river between 1930 [sic] and 1979,’” the Monsanto spokesperson stated. “After accepting a share of a $55 million settlement payment related to the clean-up, the Town is now unhappy with the remediation plan that resulted from its own settlement, and has filed suit against Monsanto, attempting to hold the Company liable for the environmental nuisance and trespass created by the Town’s own decisions.”

Regarding the unlawful practices the complaint alleges took place between Monsanto and GE, the spokesperson, on behalf of Monsanto, rejected the agreement as “improper in any way,” identifying it as “a routine commercial arrangement between two sophisticated companies that were doing business together.”

“The agreement is only between GE and Monsanto; it did not (and could not) release any party from liability to third parties,” the spokesperson stated. “The agreement had (and has) no impact on any legal liability adjudged by courts or assigned through administrative agencies like the EPA.”

The spokesperson advocated that the agreement “came at a time when the federal Interdepartmental Task Force on PCBs concluded that PCBs should not be banned entirely as ‘their continued use for transformers and capacitors in the near future is considered necessary because of the significantly increased risk of fire and explosion and the disruption of electrical service which would result from a ban on PCB use.’”

“Regarding human health risk, this report stated, ‘at the levels in which they are found, PCBs do not appear to present an imminent hazard’ to the human population,” the spokesperson added.

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