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Legal experts weigh in on city’s suit against Monsanto polluting San Diego Bay

Lawsuit could pave way for other cities to seek reparations

On March 13, the city of San Diego and the San Diego Unified Port District sued agrochemical giant Monsanto and two related companies for their role in polluting the bay with polychlorinated biphenyls, commonly called PCBs.

According to the complaint filed in federal court, Monsanto knew the chemicals would endanger humans and the environment, hid this knowledge from government entities and continued the production and sale of PCBs. The city and port are asking for punitive damages and compensation for cleaning up the pollutants.

Listed as defendants are Monsanto (NYSE: MON), its spinoff chemical company Solutia Inc. and Pharmacia Corp., a wholly owned subsidiary of Pfizer Inc. (NYSE: PFE) that inherited Monsanto’s pharmaceutical business.

San Diego is in the second phase of the largest-ever bay cleanup, which began in 2013 with the dredging of waters adjacent to shipyards in Barrio Logan. The $75 million cleanup is scheduled to be completed by March 2016.

This second phase of the bay cleanup, done by R.E. Staite Engineering Inc., targets an area called the North Site, adjacent to BAE Systems, just south of the Coronado Bridge. Photo courtesy of BAE Systems Ship Repair.

In 2012, the San Diego Regional Water Control Board ordered National Steel and Shipbuilding Co., BAE Systems, the city of San Diego, the U.S. Navy, San Diego Gas & Electric, Campbell Industries and the Port District to clean up the Shipyard Sediment Site. The cleanup aims to remove sediment containing toxins and heavy metals from industrial operations, shipyards and urban runoff that have accumulated over decades.

Last year, the city agreed to pay $949,634 in fines and set aside $6.45 million for the cleanup of the Shipyards Sediment Site. In January, the city came to an agreement with 16 insurance carriers that will cover the city’s $15 million share of the cleanup costs.

“[The city and port] are trying to shift the costs of cleanup to the companies that created the chemicals,” said Richard Opper, of the environmental law group Opper and Varco LLP. “They allege that Monsanto created PCBs knowing these chemicals were likely to create havoc in the environment, knowing that they were going to kill fish and destroy environmental systems.”

Fish advisories have been posted along the bay, warning of elevated methylmercury and PCB levels and recommending reduced or curtailed consumption of fish caught in the waters. The State Water Resources Control Board has noted that the contaminants disproportionately affect minority and low-income populations that eat fish and shellfish caught in the bay.

Other cities have sued over PCB pollution, but plaintiffs usually cite the Comprehensive Environmental Response, Compensation and Liability Act of 1980, a federal statute better known as Superfund. Instead, San Diego is bringing a claim of public nuisance.

The public nuisance statute says that everyone has the right to the quiet enjoyment of their property. The suit alleges that Monsanto created a nuisance that is harmful to the public’s health and obstructs free use of the bay.

“It’s clever and thoughtful that they’ve decided to use a common law cause of action -- this public nuisance clause of action -- instead of federal tools,” Opper said. “It’s much broader, and there aren’t as many details to comply with.”

From the 1930s to the 1970s, Monsanto was the only U.S. manufacturer of PCBs. It marketed PCBs under the trade name Aroclor. PCBs had a wide range of industrial applications, including as coolants and in electrical equipment such as transformers, motor start capacitors and lighting ballasts. They were also used in a number of products such as caulks, paints, adhesives and sealants.

PCBs are one of the most widely studied environmental contaminants, according to the U.S. Environmental Protection Agency. PCBs have been demonstrated to cause a variety of adverse health effects, including cancer.

Included in the city’s complaint were a number of documents in support of the allegations.

“The theories being planned by the city’s lawyers are sound, but they have to prove them in court,” Opper said. “We’ll see now if they can muster what they need to convince a jury.”

But Marco Gonzalez, a partner at Coast Law Group that has represented a number of environmental interests, said the case may never get before a jury.

“What the city, port and environmentalists need to show to win this case is that the Monsanto predecessors and Monsanto LLC caused the discharge of PCBs into the bay,” he said. “I don’t think it’s the most difficult thing to prove because they were ubiquitous. All the evidence cited in the complaint is clear and provable.”

With the possibility of a lengthy and public court battle -- and Monsanto already taking heat for creating genetically modified foods and legacy pollutants across the country, Gonzalez suggested the company will most likely offer a settlement.

“The total cost of remediation here in San Diego was whittled down to such a reasonable amount that once the city and port can get between $5 million to $15 million of contributions in a settlement, they’ll probably wind it up at that,” Gonzalez said. “I seriously doubt it will be a big court trial, highly publicized, dramatic type of event. It’s going to be mediation with a lot of experts and a proposed resolution.”

Monsanto said in a statement that it was reviewing the lawsuit’s allegations.

“Monsanto is not responsible for the costs alleged in this matter,” the company said. “It only sold a lawful and useful product at the time that was incorporated by third parties, including the Navy, into other useful products. If improper disposal or other improper uses allowed for necessary cleanup costs, then these other third parties would bear responsibility for these costs.”

If the city and port win the case or accept a settlement, the lawsuit could pave the way for other municipalities facing legacy pollutants to seek reparations. It could also send a message to would-be polluters.

“In the environmental world, we have the polluter pays principle,” Gonzalez said. “It basically says if you can identify the polluter, they’re the ones who should pay for the cleanup, because why would we give corporate welfare to an entity that makes money off the backs of their polluting efforts?

“The long-term ramifications might simply be to tell corporate America that you’re never off the hook.”

-- Klam is a San Diego-based freelance writer.

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