Source: Seattle Times, February 28, 2017
Posted on: http://www.advisen.com
A federal judge has refused to dismiss a lawsuit filed last year by the city of Seattle against Monsanto to make the company pay for the cleanup of toxic PCBs from the city’s drainage system and the Duwamish River.
U.S. District Judge Robert Lasnik, in denying Monsanto’s motion to dismiss the case, said the city’s claim “plausibly alleges that Monsanto knew that its chemical products were toxic, yet chose not to modify its toxic chemical products, or to warn of their toxicity, in order to maximize its profits.”
Monsanto was the sole producer of PCBs (polychlorinated biphenyls) for commercial use in the United States from 1935 to 1977, and continued to profit from their sale for years even as its officials knew the chemicals were polluting the environment, causing harm to people and wildlife, according to pleadings filed by the city’s contract attorneys.
They sued last year, and Monsanto moved to dismiss the lawsuit.
Lasnik found the city’s lawsuit could go forward with claims of public nuisance and negligence but threw out other key claims, including one attempting to indemnify Monsanto for all of the costs of the city’s efforts to clean up its waterways, including a 2013 legal agreement with federal regulators to build a $27 million wastewater- treatment plant on the Duwamish.
Even so, that plant would remove only a fraction of the pollutants from the roughly 20,000 acres of mostly industrial sites that drain into the lower Duwamish, and that amount is only a fraction of what the cleanup will eventually cost.
The city says it already has dredged 10,000 cubic yards of PCB-contaminated sediment from the lower Duwamish, with additional cleanup underway.
Lasnik would not allow a claim that would have held Monsanto responsible for all of the costs but did hold the possibility open for the city to recover significant portions of it, said San Diego trial attorney John Fiske, one of several attorneys hired by the city to sue the company.
“Monsanto does not argue that it is responsible for none of the PCBs in Seattle’s water,” Lasnik wrote. “The existence of other PCB sources merely creates a question of fact regarding the amount of damages for which Monsanto is responsible.”
Scott Partridge, vice president of global strategy at Monsanto, issued a statement Monday pointing out that the “ruling narrowed the city’s case.”
“Now the city has to support its extreme factual allegations about what was known about a legal and government-mandated product decades ago,” Partridge said. “We look forward to refuting the remaining claims through discovery.”
Seattle is the sixth major city in the West to seek cleanup damages from the company, joining Spokane and San Jose, Oakland, Berkeley and San Diego in California.
Targeted is PCB contamination in 20,000 acres that drain to the Lower Duwamish, which have been designated a federal Superfund cleanup site. Also at issue are areas that drain to the East Waterway, adjacent to Harbor Island, a separate Superfund site.
PCB pollution is widespread. City inspections have detected PCBs in 82 percent of samples of sediment in drainage pipes, according to the complaint.
The lawsuit now proceeds to discovery. A tentative trial date is set in April 2018.