Source: http://bostonglobe.com, October 4, 2012
By: Brock Parker
Lexington has filed a lawsuit in federal court seeking damages on behalf of itself and other Massachusetts school districts affected by potentially harmful levels of chemicals known as PCBs.
The suit, against Pharmacia Corp., Solutia Inc., and Monsanto Co., claims the makers of polychlorinated biphenyls, or PCBs, knew or should have known of the public health and environmental dangers posed by use of the chemicals in the construction of schools from the 1950s through the 1970s and failed to provide adequate warnings.
The New York law firm of Robert F. Kennedy Jr. and his partner, Kevin Madonna, is representing Lexington. The suit was filed in US District Court in Boston Sept. 4. Class-action status is sought.
In a statement on Wednesday, Monsanto­ said the lawsuit is without merit. Solutia’s parent company, Eastman Chemical Co., declined to comment, and Pharmacia referred questions to Monsanto.
Madonna said his law firm is also working with other school districts in the state with concerns about PCBs, but he declined to name them until lawsuits have been filed on their behalf. The firm, which specializes in environmental litigation, settled a similar suit filed by the Yorktown Central School District in New York in 2008, Madonna said.
“This isn’t a problem that is limited to the Northeast,” he said. “We think this is occurring all over the country but schools are hesitant to affirmatively test for the PCBs for fear of having to spend millions of dollars in litigation.”
Lexington Public Schools temporarily closed its Estabrook Elementary School in September 2010 when testing revealed elevated levels of PCBs in the school. Madonna said Lexington has since spent millions of dollars on remediation to address the PCB levels at Estabrook. The school district is beginning construction of a new school this month.
PCBs are potentially cancer-causing if they build up in the body over long periods, according to the Environmental Protection Agency. Congress banned the manufacture and most uses of the chemicals in 1976.
In 2009, the EPA issued a series of guidelines, including testing procedures, that school administrators should follow to limit exposure to PCBs, which the agency said were widely used in construction materials, such as caulk, between 1950 and 1978.
The lawsuit seeks to represent all school districts in the state that have one or more buildings with airborne PCBs that have been measured in excess of public health levels established by the EPA.
According to the complaint, Massachusetts has almost 1,900 schools, and more than half of them were built between 1950 and the 1970s.
The school district’s lawsuit claims that Monsanto, known since April 2000 as Pharmacia and now owned by New York-based Pfizer, was the exclusive manufacturer of PCBs in the United States from 1935 to 1978. The suit claims that the company knew about the toxicity of PCBs as early as the 1930s but continued to manufacture, sell, and promote the products.
Monsanto changed its name to Pharmacia in 2000, but a spinoff company named Monsanto Ag Co. changed its name to Monsanto Co. the same year.
According to Lexington’s lawsuit, Pharmacia, Solutia Inc., and the present-day Monsanto Co. have agreements that have divided the liabilities arising from the chemical business of Pharmacia when it was known as Monsanto.
Thomas Helscher, a director of corporate affairs for today’s Monsanto Co., said in a prepared statement on Wednesday that PCBs were a legal and useful product several decades ago that were sold in bulk to manufacturers who used the constituent chemical to formulate and design a wide variety of products to improve safety and performance.
He said that many building codes required PCBs in electrical equipment in schools, hospitals, or other buildings where the risk of a fire was a major concern.
Helscher said that Monsanto did not have a commercial relationship with Lexington, and the “duty to warn” theories presented in the town’s lawsuit are not supported by Massachusetts law.
“Moreover, it is our understanding that the school in question was built over 50 years ago, was poorly maintained, and was scheduled for demolition years ago since it had outlived its useful life,” Helscher said.