SAN JOSE – Monsanto has asked a California court to dismiss multiple lawsuits filed by California municipalities that blame the agricultural chemical company for PCB contamination in the San Francisco Bay.

The motion for dismissal, filed June 20, says the claims are misdirected.

“We all share an interest in clean water, but this lawsuit is a self-serving attempt by those who are largely responsible for discharging PCBs into the Bay – the cities of San Jose, Oakland and Berkeley and users of their stormwater systems – to pass off those liabilities to old Monsanto, a company that stopped making PCBs 40 years ago, and never spilled, dumped or discharged a single PCB molecule into those waters,” Scott S. Partridge, vice president of global strategy for Monsanto, said in a statement to the Northern California Record.

The cities of San Francisco, San Jose and Berkeley have separate municipal storm sewer systems that discharge into the bay. They’re subject to permit requirements under the Clean Water Act, including limits on PCB discharges. Each municipality filed a separate lawsuit against Monsanto in 2015 and 2016 – they were later deemed related and put on a related brief docket – and they claim Monsanto should shoulder the cost of complying with updated permits governing the city's stormwater discharge. 

Between 1935 and 1979, “Old Monsanto” – the original Monsanto company – was the only U.S. maker of PCBs. PCBs are man-made compounds that have been used in electrical equipment, paint and some building materials. The lawsuit claims Monsanto knew that PCBs are harmful to human and environmental health, but continued manufacturing them until PCBs were banned in 1979 under the Toxic Substances Control Act. Exposure to PCB is allegedly linked to cancer and other health effects in humans.

The cities claim that PCBs originate from multiple sources, but discharges into the bay when it rains. An updated permit sets stricter requirements on PCB levels that will require the cities to spend more money to reduce stormwater discharge. The cities argue that Monsanto created a public nuisance by manufacturing, distributing, marketing and promoting PCBs, which affects people’s recreation and commercial activities. They also assert a right to equitable indemnity, claiming the city had no hand in contaminating the bay and should be allowed to recover damages from Monsanto.

Monsanto further argues that the cities don't show a causal link between Monsanto’s manufacturing of PCBs and the contamination in the bay.The company says it is too far-removed to be liable for the discharge.

“Decades ago, Old Monsanto legally produced and sold the highly valued chemical to the government and companies that incorporated them into their products which they in turn sold to others, including the three cities now making these specious claims,” Partridge said. “Any PCBs that may be in the bay came primarily and directly from these and other end-users.”

Monsanto’s motion to dismiss claims the lawsuits attempt to redefine “public nuisance legal theory” in a way that hasn’t held up in other courts.

“The public nuisance allegations hinge upon an overwhelmingly rejected theory that a manufacturer of a legal and useful product can be held liable under public nuisance for the actions decades ago of its customers (and in turn, their customers),” according to court documents.

“By joining this legal scrum, city officials have signed on to an open-ended commitment of taxpayer resources that will drag on for years and, in the end, may only serve to uncover the fact that the city itself is responsible for the PCBs in the water,” Partridge said. “Unsubstantiated cases like this, if allowed to go forward, will damage the state’s economy by warding off entrepreneurs and businesses that will wisely choose to operate in jurisdictions that refuse to expose them to speculative legal threats.”

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