San Jose Sues Monsanto over Pollution in San Francisco Bay

The city of San Jose has sued Monsanto Company and two related corporations over chemical pollution in the San Francisco Bay.

Filed a month ago in the U.S. District Court in California’s Northern District, the suit lists defendants as Monsanto, its chemical manufacturing offshoot Solutia Inc. and Pharmacia Corporation, another Monsanto spinoff now owned by Pfizer.

San Jose claims these companies are liable for fouling the bay with polychlorinated biphenyls—commonly called PCBs. Monsanto manufactured and sold the toxic chemicals under the name Aroclor from the 1930s to 1970s, despite knowing the harm it could have on the environment and people, according to the lawsuit.

Despite this knowledge, the agriculture giant kept producing Aroclor until Congress enacted a law banning its use in 1979. For decades, it was the only manufacturer of the chemical. The city has called for a jury trial and seeks punitive damages to clean waterways.

Monsanto spokeswoman Charla Lord said the company is reviewing the lawsuit and the allegations.

“Monsanto is not responsible for the costs alleged in this matter,” she told San Jose Inside. “PCBs sold at the time were a lawful and useful product that were then incorporated by third parties into other useful products. If improper disposal or other improper uses allowed for necessary clean up costs, then these other third parties would bear responsibility for these costs.”

PCBs have been linked to cancer and reproductive and developmental problems. For decades, it was used in paint, caulk, coolants, sealants, inks, lubricants and other widespread applications. Industrial and commercial runoff ferries the chemical through storm drains and into the bay, where it contaminates fish and other marine life.

Because of federal limits on the concentration of PCB in the bay, San Jose has to obtain permits from local water authorities to discharge storm water. Recently, the San Francisco Bay Regional Water Quality Control Board upped the standards, which will cost even more and force the city to improve its methods and facilities, according to the suit.

Monsanto has distanced itself from its PCB producing days—the old company no longer exists.

“Monsanto today, and for the last decade, has been focused solely on agriculture, but we share a name with a company that dates back to 1901,” Lord explained. “The former Monsanto was involved in a wide variety of businesses, including the manufacturing of PCBs.”

Old Monsanto had its hand it agriculture, chemical products and nutrition. Around 1997, the company split into three distinct corporations. The company now known as Monsanto assumed the agricultural products business. Solutia took over chemical manufacturing and Pharmacia focused on prescription drugs. The lawsuit says the three companies share liability for claims arising from the Old Monsanto’s chemical business.

The lawsuit quotes internal company documents that indicate Monsanto knew full well the environmental havoc it caused with Aroclor. The complaint also alleges that the company lied to government regulators, saying the product was non-toxic and wouldn’t affect the environment.

Here’s a copy of the entire complaint. The suit is being carried by Gomez Trial Attorneys and Baron & Budd, P.C. on contingency.

“No company should be allowed to contaminate the environment and rely upon taxpayers to clean up the mess," attorney Scott Summy, a shareholder at Baron & Budd, P.C., said in a statement. "Monsanto, one of the most sophisticated chemical companies in the world, knew decades ago that PCBs were a significant contamination threat. And yet the company was concerned more with continuing profits than with protecting the public.”

Several cities have filed similar lawsuits, including recent complaints brought by San Diego and Spokane, Washington.

Public nuisance claims almost always fail, but California has had some success. In an interview with ThinkProgress, Rena Steinzor, president of the Center for Progressive Reform, compared the PCB claim to a lawsuit Santa Clara County filed against paint manufacturers for lead poisoning. After 14 years of legal wrangling, the court ordered companies to pay $1.15 billion to remove toxic paint.

Jennifer Wadsworth is a staff writer for San Jose Inside and Metro Newspaper. Email tips to jenniferw@metronews.com or follow her on Twitter at @jennwadsworth.

8 Comments

  1. The Municipal Regional Storm Water NPDES permit compliance aspects are going to be very costly to rate payers.

    David S. Wall

  2. > PCBs have been linked to cancer and reproductive and developmental problems. For decades, it was used in paint, caulk, coolants, sealants, inks, lubricants and other widespread applications.

    Inks? Did someone say inks?

    Now that you brought it up, I recall that the San Jose Mercury News was exposed as using PCB-bearing ink in its color printing processes a number of years back.

    The Merc should be added as a respondent on San Jose’s suit.

    Hmmmm.

    Who else do we know in San Jose who prints lots of stuff on newsprint using colored inks?

  3. Thanks for the link to the complaint, Jenn. The reference to studies and Monsanto internal memos make it clear that Monsanto knew or should have known that PCBs are toxic no later than the 1950s. Those same studies and memos make it clear that Monsanto’s denials of those toxic effects are comparable to Big Tobacco’s consistent denial that tobacco is harmful. The fact that the EPA banned PCBs in 1979 (presumably after long and slow study, as is the custom of government agencies) pretty much put the last nail in the coffin of PCBs, and would tend to establish liability against Monsanto and its successors…except for the defenses of the Statute of limitations and laches. The allegations of Monsanto’s concealment of the adverse effects would normally toll the statute of limitations; except for the fact that the concealment has long been known. Alleging a continuing nuisance seems the only way to avoid the operation of a statute of limitations. But it seems to me that the defense of laches would still apply to bar these claims. It also seems to me that the plaintiff City of San Jose waited way too long to file this complaint, since at least as early as the 1979 ban (and perhaps sooner) the City knew or should have known of the dangerous toxic effects of PCBs. Given the out of state status of the real lawyers in this case, I conclude that this is one of dozens of cases those firms have filed nationwide on behalf of local governments saddled with violations of EPA limits on toxic levels of PCBs. And, all those lawsuits will probably result in settlements and the lawyers will awarded a ton of money after conducting discovery identical to the discovery conducted in all the previous cases they have filed. San Jose will get some cleanup costs in the settlement, which will be dwarfed by the attorneys fees awarded to “our” lawyers. Another lawyer’s full employment act disguised as a concern for the environment and public health.

  4. Why did the city wait so long to sue? PCB contamination has been here for decades. Seems like the City of San Jose smells an opportunity to get some money from a “deep pockets” corporation in order to add to their General Fund.

  5. > After 14 years of legal wrangling, the court ordered companies to pay $1.15 billion to remove toxic paint.

    I’m curious why Mt Uhminhum doesn’t receive some of that money to clean the lead paint.

  6. Oh Yes, PCB’s are bad, and lets sue every one that used them.
    PCB the chief and effective ingredient in “Agent Orange” transformer oil, florescent light ballasts, roads, in every
    land fill in America.
    Who shall pay for it’s use in Vietnam, and all those that served?
    Government sue thy own self first !

  7. Typical Democrat public consumption suckers’ pablum and waste of taxpayers money on long past issue…using a supposed public health issue to try to get money. How about San Jose suing Planned Parenthood (San Jose office in most recent gruesome baby-killing video, or, replacing deadly Caltrain-HSR shill since 1995 (per CHSRA Dan Richard, KCBS January 2015 Indepth interview) and 227 deaths since- 16 this year so far–to get BART up the Peninsula to Millbrae…loop around the Bay, finally, save lives. (BART ytd deaths = 7, typically half Caltrain-HSR tracks, but moves 8x people, more frequent service, etc)